Lack of conclusive evidence and uncertainty regarding the seized substance can lead to the benefit of doubt in favor of the accused under the NDPS Act.

Anjana Prakash, J.

1. No one appears on behalf of the Union of India despite due notices to them.

2. The Appellant has been convicted under Section 23 of NDPS Act and sentenced to RI for ten years and a fine Rs. 1 Lakh by a judgment dated 08.08.1994 passed by the 2nd Additional Sessions Judge, East Champaran, Motihari in S.Tr. No. 328/51 of 1993.

3. The case of the prosecution is that after having received secret information that narcotics was being transported by some persons certain buses were intercepted on 19.03.1993. During course of search a box was found under a seat which was not claimed by any one from which three packets of alleged "Charas" was recovered the Appellant was asked to give his body search and from his possession two packets of alleged "Charas" were seized and samples of which were sent to the Forensic Science Laboratory at Calcutta.

4. During trial the prosecution examined six witnesses out of whom P.W. 1 and P.W. 2 are members of the raiding party whereas P.Ws. 3, 4 and 5 have been tendered for cross-examination. P.W. 5 is merely on the fact of search of a bus and the fact that 5 Kgs. of alleged "Charas" were recovered.

5. The relevant point of consideration is whether articles which were recovered was in fact #28;Charas#29;. Unfortunately, there is no Forensic Science Laboratory Report which would conclusively prove that indeed the articles seized was #28;Charas#29;. Moreover, both P.W. 1 and P.W. 2 have stated that the samples were taken only from one packet and, therefore, even if the articles were tested it has no meaning since the quantity of the articles seized which alone determines the conviction as to whether it comes within the commercial small quantity and therefore the Appellant is entitled to benefit of doubt. In view of such, the appeal is allowed and the judgment dated 08.08.1994 passed by the 2nd Additional Sessions Judge, East Champaran, Motihari in S.Tr. No. 328/51 of 1993 is set aside. The Appellant is discharged of the liability of his bail bond.