The chain of custody is the most critical process of evidence documentation. It is amust to assure the court of law that the evidence is authentic, i.e., it is the same evidence seized at the crime scene. That it was, at all times, in the custody of a person designated to handle it and itwas neverunaccounted. The continuity of possession of evidence or custody of evidence and its movement and location from the point of discovery and recovery (at the scene of a crime or from a person), to its transport to the laboratory for examination and until the time it is allowed and admitted in the court, is known as the chain of custody.The goal is to establish that the evidence is related to the alleged crime, was collected from the scene, and was in its original/unaltered condition rather than having been tampered with or "planted" deceitfully to make someone seem guilty. The chain of custodymaintains the integrity of the sample. The traceability of the record of the control, transfer, and analysis of samples indicates the transparency to the procedure.
The chain of custody which includessafe custody and safe transmission of the narcotic drug begins with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug withthelaw enforcement agency and the subsequentdispatchof the representative samples of the narcotic drug to the officeof the Chemical Examineror Government Analystforexamination and testing. This chain of custody must be transparent, uncompromised, recorded, safe, secureand unbroken. The chain of custody assumes critical importance under CNSA because, the Report of the Chemical Examiner can be the sole basis of conviction of the accused. Therefore, it is important to ensure thatthe integrity of the chain of custodywas intact and the actually seized narcotic drug or its representative samples have reached the office of the Chemical Examineror Government Analyst for testing and examination. As a corollary, any break or gap in thechain of custody i.e., in the safe custody or safe transmission of the narcotic drug or its representative samplesrenders the Report of the Chemical Examiner unsafe and unreliable to support conviction. The prosecution, before placing reliance on the Report of the Chemical Examiner or the Government Analyst, must first establish that the chain of custodyissafe, secure and unbroken. In case the prosecution fails to do so, the Report of the Chemical Examiner or the Government Analyst loses its reliability.
Crl.A.184/2020 Mst. Sakina Ramzan v. The State Mr. Justice Syed Mansoor Ali Shah 06-01-2021 IN THE SUPREME COURT OF PAKISTAN(Appellate Jurisdiction)PRESENT:Mr. Justice Manzoor Ahmad MalikMr. Justice Mazhar Alam Khan MiankhelMr. Justice Syed Mansoor Ali ShahCriminal Appeal No.184of 2020.(On appeal from the judgment of High Court OF Sindh, Karachi, dated 01.6.2018,passed in Crl.A No. D-98/2016)Mst. Sakina Ramzan ...AppellantversusThe State...RespondentFor the appellant:Syed Rifaqat Hussain Shah, AOR.Mr. Hassan Mahmood Mandviwala, Advocate High Court.For the State:Moulvi Ijaz-ul-Haq, DAG.Date of hearing:06.01.2021
JUDGMENT
Syed Mansoor Ali Shah, J.-During snap checkingon 26.11.2014,Customs officers stopped a vehicle on the RCD Highway, Karachiloaded with three LCD TVs, two room heatersand one washing machine. Abdul Ghaffar was the driver of the vehicle (since acquitted) and the appellant was the only passenger in the vehicle. Upon thorough examination of the body frames of the three LCD TVs, two room heaters and one washing machine, 45Kgs (gross) of charaswas recovered hidden in the body frames of these items. This led to the registration of FIR No.150 dated 27.11.2014against both the appellant and her co-accusedfor an offence under section 9(c) of the Control of Narcotic SubstancesAct, 1997 (“CNSA”).
2.After regular trial, the appellant was convicted under section 9(c), CNSA and sentenced to imprisonment for life and to afine of Rupees One million andin default thereof to suffer simple imprisonment for five years, while benefit of section 382-B, Cr.P.C was also extended to the appellant. The co-accused Abdul Ghaffar was acquitted of the charge by the trial court being a taxi driverhaving no involvement in the matter. Theappellant challenged her conviction and sentence before the Sindh High Court, where her appeal was dismissed and the conviction and sentence of the trial court was maintained. Leave was granted by this Court vide order dated 04.3.2020 for reappraisal of the entire evidence so as to ensure safe administration of criminal justice.
3.After gooingthrough the record of the case with the assistance of learned counsel for the parties, we noticed that according to the statement of the complainant Muhammad Younus Sabir(PW-1), SPO, Customs Preventive,he recovered the narcotic drugs from the seized items mentioned above on 26.11.2014 and prepared the memo of recovery along withtheinventory (Ex-9/A & Ex-9/A-1) and deposited the same in thewarehouse.Zulfiqar Ali(PW-3), PO, Customs Preventive, stated that SO Khalid was Incharge of the warehouse, however, the said incharge was not produced by the prosecution to confirm the safe deposit and custody of the narcotic drugs afterits recovery on 26.11.2014. The Report of the Director Laboratories & Chemical Examiner (Ex-11A/1) reveals that the narcotic drugswere received in hisoffice on 28.11.2014by hand throughASO Muhammad Younas Sabir.No “ASO” Muhammad Younas Sabir was produced before the court. Considering it to be SPO Muhammed Younas Sabir, wrongly mentioned as ASOin the Report,even SPO Muhammed Younas Sabir, while appearing as PW-1 never stated that he delivered the narcotic drugs, by-hand,inthe office the Director Laboratories & Chemical Examiner. Infact he stated that:
“we had sent 43 samples sent (sic) for chemical examiner with the letter of superintendent of customs.”
The letter of the Superintendent Preventive Service dated 27-11-2014 (Ex 9/B) written to the Chemical Examiner states that 43 sealed samples are being forwarded to the chemical examiner. The author of this letter i.e., Superintendent Preventive Service was not produced as a witness. In the absence of the statement of the warehouse in-chargeand Muhammed Younas Sabir (PW-1) regarding thedelivery of the representative samples of the narcotic drugsto the office of the chemical examiner, it is uncertain whether the narcotic drugs and the representative samples were deposited in the warehouse by PW-1; whocollected the representative samples from the incharge of the wharehousefor onward delivery to the Chemical Examiner;and who actually delivered the narcotic drugs at theoffice of the chemical examiner.
The chain of custody is the most critical process of evidence documentation. It is amust to assure the court of law that the evidence is authentic, i.e., it is the same evidence seized at the crime scene. That it was, at all times, in the custody of a person designated to handle it and itwas neverunaccounted. The continuity of possession of evidence or custody of evidence and its movement and location from the point of discovery and recovery (at the scene of a crime or from a person), to its transport to the laboratory for examination and until the time it is allowed and admitted in the court, is known as the chain ofcustody.The goal is to establish that the evidence is related to the alleged crime, was collected from the scene, and was in its original/unaltered condition rather than having been tampered with or "planted" deceitfully to make someone seem guilty. The chain of custodymaintains the integrity of the sample. The traceability of the record of the control, transfer, and analysis of samples indicates the transparency to the procedure.
The chain of custody which includessafe custody and safe transmission of the narcotic drug begins with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug withthelaw enforcement agency and the subsequentdispatchof the representative samples of the narcotic drug to the officeof the Chemical Examineror Government Analystforexamination and testing. This chain of custody must be transparent, uncompromised, recorded, safe, secureand unbroken. The chain of custody assumes critical importance under CNSA because, the Report of the Chemical Examiner can be the sole basis of conviction of the accused. Therefore, it is important to ensure thatthe integrity of the chain of custodywas intact and the actually seized narcotic drug or its representative samples have reached the office of the Chemical Examineror Government Analyst for testing and examination. As a corollary, any break or gap in thechain of custody i.e., in the safe custody or safe transmission of the narcotic drug or its representative samplesrenders the Report of the Chemical Examiner unsafe and unreliable to support conviction. The prosecution, before placing reliance on the Report of the Chemical Examiner or the Government Analyst, must first establish that the chain of custodyissafe, secure and unbroken. In case the prosecution fails to do so, the Report of the Chemical Examiner or the Government Analyst loses its reliability.
In the present case it has not been established where the recovered and seized narcotic drugs and its samples were deposited and stored on 26.11.2014; who took possession of the narcotic drugs from PW-1 at thewarehouse; who collected themfrom the warehouseincharge and delivered them by-hand to the Chemical Examiner on 28.11.2014. The entire chain of custody stands compromised, as a consequence, reliance cannot be placed on the Report of the Chemical Examiner to support conviction of the appellant. SeeImam Bakhsh1and Ikramullah.
5.For the above reasons, extending the benefit of doubt to the appellant, weallow this appeal and set aside the conviction and sentence of the appellant-Mst. Sakina Ramzan. The appellantis directed to be releasedforthwith, if now required in any other case.5.Foregoing are the reasons for the short order dated 06.1.2021, which is reproduced hereunderfor convenience:-
“For reasonsto be recorded later, the instant criminal appeal is allowed. The conviction and sentence of appellant Mst. Sakina Ramzan is set aside. She is acquitted of the charge framed against her. She is behind the bars and is ordered to be released forthwith, if not required to be detained in any other case.”6.Before parting with the judgment we wish to place our appreciation on the record for the pro bonolegal assistance rendered by Mr. Hassan Mahmood Mandivala, Advocate in representing the appellant on behalf of the Legal Aid Committee for the Welfare of the Prisoners.
Islamabad,06thJanuary, 2021.
Approvedfor reporting.
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1 2018 SCMR 2039
2 2015 SCMR 1002
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