The report of a chemical examiner is not admissible in evidence under Section 293 of the CrPC unless it is made by an authority specified therein. The rules of evidence cannot be waived by consent of the parties in a criminal case.

( 1 ) THE appellant Mela Singh was convicted by the trial court u/s. 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (N. D. P. S. Act) and sentenced to 12 years, R I. and to pay a fine of Rs. 1 lakh for being in illegal and unauthorised possession of 5 kgs. poppy husk.

( 2 ) BRIEFLY stated the prosecution case is that on 27. 7. 1990, S. I. Prakash Chand (P. W. 5) alongwith A. S. I. Om Parkash was on patrol duty at departure hall of Inter-State Bus Terminal, Delhi. Following a tip off, a raiding party was organised at about 5. 15 p. m. and the appellant was apprehended at platform Nos. 8 and 9 and from his possession 5i kgs. of poppy husk was seized vide seizure memo Ex PW. 5/a. The samples were sent for the chemical examination and after receiving the report, charge sheet was laid.

( 3 ) APPELLANT in his statement u/s. 313, Cr. P. C. stated that he was falsely implicated. Learned trial court accepted prosecution case and convicted appellant.

( 4 ) IN this appeal the main submission is that the report of the C. F. S. L. (Ex. PW5/d) is not admissible in evidence u/s. 293 Cr. P. C. as the same has not been made by an authority specified therein. Learned counsel for the appellant also submitted that there is no clinching evidence that the appellant was found in possession of the contraband.

( 5 ) THE first point to be determined in the appeal is whether the substance seized and produced in this case was poppy husk. In order to prove the said fact, the prosecution has relied on the report of the C F. S. L. (Ex. P. W. 5/d) which gave positive test for poppy husk. This report has been assailed by the appellant on the ground of its inadmissibility in evidence u/s. 293 Cr. P. C. Admittedly, this report is not by a Director or Deputy Director or Asstt. Director of Forensic Science Lab. as contemplated by S. 293 af the Cr. P. C. Perusal of the said report shows that (he same has been made by Shri C L. Bansa), Sr. Scientific Assistant, Central Forensic Lab. , C B. L S. 293 Cr. P. C. reads (--)

( 6 ) IT has not been disputed before me that Sr. Scientific Assisstant, CFSL does not fall in categories of the experts mentioned in Section 293. Shri C. L Bansal has not been examined in this case. Learned counsel for the appellant relying upon Heera Lal vs. State 52 : DLT, Islam vs State (30) D R. J. , Attar Singh vs. State 1994 (III)A. D. (D)525, contended that the said report not being under the hand of a Scientific expert mentioned in S. 239 (4) (e) Cr. P. C. cannot be used as evidence in trial without the same being examined in this case. It has been held in these judgments that the report of Shri C. L. Bansal, Sr. Scientific Assistant, CFSL can t be used in evidence as he does not fall in the categories of the experts mentioned in S. 293 Cr. P. C. After these decisions, a contrary view was taken by a learned single Judge of this court in Shankaria D. Shankar vs. State (1994) IV A. D. (D)946 and it was laid down that question of proof of a document is a procedure and may be waived. According to the learned Judge, when a document is tendered and admitted in eviednce without objection to its admissibility or mode of proof, the appellant can t be allowed to challenge its inadmissibility in appeal. This view is based upon the well-established principle of law that the rules as regards the production of a document and strict proof thereof, as contained in the Evidence Act, can be dispensed with by consent of the parties and once a relevant document is admitted in evidence without any objection to its mode of proof, its admissibility can t be challenged in appeal.

( 7 ) IN the instant case, the question is whether the rules of evidence as regards the production and strict proof of a document can be waived in a criminal case. Kenny answers this question in negative in Outlines of Criminal Law, 1971 Ed. P 472. He states that :

"a marked distinction betwven the civil and the criminal views of the law of evidence is that i