Samples of Charas were lying about twenty-five (25) days, which makes the case of prosecution doubtful and any doubt if arises....

 PLJ 2020 Cr.C. (Note) 15

Control of Narcotic Substances Act, 1997 (XXVII of 1997)--

----S. 9(c)--Control Narcotic Substances (Government Analyst) Rules, 2011, R. 4(2)--Conviction and sentence--Challenge to--Benefit of doubt--Allegation of recovery of contraband--As per Rule, 4(2) of the Control of Narcotic Substances (Government Analysts), 2001, this exercise was required to be completed within 72 hours of the recovery, and for this purpose even there is no plausible explanation brought on record by the prosecution as to why such inordinate delay was caused in the completion of this exercise by the Investigating Officer--This is fatal to the prosecution case--Prosecution has also failed to examine the police officer, who had taken the sample to the Chemical Examiner, so that he could have been cross-examined on the point as to in whose custody the sealed parcels of the samples of Charas were lying about twenty-five (25) days, which makes the case of prosecution doubtful and any doubt if arises in the links of the chain of prosecution story, the benefit of the same will go to the accused--By the Hon’ble Supreme Court, the safe custody and safe transmission of the seized narcotics had not been established--Report of the FSL relied upon by the prosecution in the instant case also does not contain the full protocols of the test applied for; therefore, the same is not reliable--By the Hon’ble Supreme Court, the report of the Chemical Expert relied upon by the prosecution in the instant case being inconclusive and unreliable cannot be made a basis to sustain conviction and sentence of the appellant--Appeal was accepted.

                                                      [Para 6, 7, 8, 9 & 10] A, B, C, D & E

2013 MLD 1527 and 2011 SCMR 820.

Mr. Habib-ur-Rehman, Advocate for Appellant.

Mr. Abdul Mateen, Deputy Prosecutor-General for State.

Date of hearing: 25.10.2018.

Judgment

Zaheer-ud-Din Kakar, J.--This Criminal Appeal is directed against the judgment dated 28.4.2018 (“the impugned judgment”), passed by the Special Judge, CNS, Quetta (“the trial Court”), in case FIR No. 01 of 2016 dated 01.01.2016 registered with Police Station, New Sariab, Quetta, whereby the appellant Gul Hassan son of Fida Hussain has been convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 (“the Act”) and sentenced to suffer Rigorous Imprisonment (RI) for Six (6) years with fine of Rs. 30,000/- (Rupees thirty thousand), in default thereof to further undergo for a period of six (6) months Simple Imprisonment (SI) with benefit of Section 382-B, Cr.P.C. for recovery of 01 Kilo and 10 grams Heroin from possession of the appellant.

2. After formal investigation, report under Section 173 of Cr.P.C. was submitted before the trial Court and the appellant was sent to face the trial. The trial Court seized with the matter, framed the charge against the appellant under Section 9(c) of the Act to which he pleaded not guilty and claimed trial. In order to prove the alleged recovery the prosecution examined following witnesses:

PW-1 IP Khalil Ahmed Bugti complainant has reiterated the contents of murasila, produced recovery memo of Heroin as Ex­P/1-A and murasila as Ex-P/1-B.

PW-2 SI Muhammad Ayaz was marginal witness of recovery memo of Heroin Ex-P/1-A.

PW-3 Naimatullah Tareen, Investigating Officer, conducted investigation, recorded statements of witnesses, produced    FIR as Ex-P/3-A, incomplete Challan Ex-P/3-B, FSL report Ex-P/3-L and complete Challan Ex-P/3-D.

3. On completion of prosecution evidence, the accused was examined under Section 342 Cr.P.C., wherein he professed innocence and denied the allegations leveled against him. The appellant did not record his statement on oath nor led any witness in his defence. On conclusion of the trial, the trial Court convicted and sentenced the appellant vide impugned judgment dated 28.04.2018, hence this appeal.

4. Learned counsel for the appellant contended that the prosecution has failed to prove charge against the appellant beyond reasonable doubt; that there is delay of about twenty-five (25) days for sending the alleged sample to the Chemical Examiner, therefore, tampering with the same cannot be ruled out; that the FSL report is not in accordance with Section 36 of the Act and Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 as the same does not disclose the complete protocols nor the same is in quadruplicate; that the report is inconclusive, therefore the same should have not been used against the appellant. Finally, he prayed for setting aside of the impugned judgment and acquittal of the appellant.

5. On the other hand, the learned DPG strongly opposed the appeal and defended the impugned judgment.

6. We have heard the learned counsel for the parties and have gone through the available record, which reveals that the alleged recovery was effected on 01.01.2016 at about 5:30 p.m., but perusal of Forensic Science Laboratory report (Ex-P/3-C) shows that the samples were received by the Chemical Expert on 26.01.2016, with delay of about twenty-five (25) days and such delay has not been explained.

As per Rule, 4(2) of the Control of Narcotic Substances (Government Analysts), Rule 2001, this exercise was required to be completed within 72 hours of the recovery, and for this purpose, even there is no plausible explanation brought on record by the prosecution as to why such inordinate delay was caused in the completion of this exercise by the Investigating Officer. This is fatal to the prosecution case. In this regard, reference can be made to the case of Muhammad Aslam v. The State reported in 2011 SCMR 820 and Shamsullah v. The State 2013 MLD 1527.

7. The prosecution has also failed to examine the police officer, who had taken the sample to the Chemical Examiner, so that he could have been cross-examined on the point as to in whose custody the sealed parcels of the samples of Charas were lying about twenty-five (25) days, which makes the case of prosecution doubtful and any doubt if arises in the links of the chain of prosecution story, the benefit of the same will go to the accused.

8. In the recent consolidated judgment dated 03.10.2018 passed by Hon’ble Supreme Court in Criminal Appeals Nos.523 to 525 of 2017, Criminal Appeal No. 494 of 2017, Criminal Appeal No. 452 of 2017, Criminal Appeal No. 22 of 2018, Criminal Appeal No. 51 of 2017 and Criminal Petition No. 94-Q of 2017 relied upon by learned counsel for the appellant, it has been held by the Hon’ble Supreme Court as follows:

“We have noted above that in Criminal Appeals Nos.523 to 525/2077 and 22/2018, safe custody and safe transmission of alleged narcotics from the spot of recovery till its receipt by the Forensic Science Laboratory are not satisfactorily established. The chain of custody begins with the recovery of the seized Charas by the police and includes the separation of the representative sample(s) of the seized narcotics and their dispatch to the Narcotics testing Laboratory. This chain of custody, is pivotal as the entire construct of the Act and the Rules rests on the report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory. The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the report of the Government Analyst thus, rendering it in capable of sustaining conviction. This Court has already held in Amjad Ali v. State (2012 SCMR 577) and Ikramullah v. State (2015 SCMR 1002) that where safe custody or safe transmission of the alleged drug is not established, the Report of the Government Analyst becomes doubtful and unreliable.”

In the circumstances of the instant case and in view of the above dictum laid down by the Hon’ble Supreme Court, the safe custody and safe transmission of the seized narcotics had not been established.

9. The report of the FSL Ex-P/3-C relied upon by the prosecution in the instant case also does not contain the full protocols of the test applied for; therefore, the same is not reliable. Reliance in this regard can be placed to the judgment supra, wherein at paras Nos.15, 16 and 20 it has been held as follows:

“15. Rule 6 on the other hand stands on a different statutory footing. It provides that the Report of the Government Analyst, after the test and analysis, is to furnish the result together with full protocols of the test applied. The accuracy of test and analysis and the correct application of the full protocols alone can determine if the recovered substance is a narcotic drug or a psychotropic or controlled substance. “Protocol” means an explicit, detailed plan of an experiment, procedure or test or a precise step-by-step description of a test, including the listing of all necessary reagents and all criteria and procedures for the evaluation of the test data. Rule 6 requires that full protocols of the test applied be part of the Report of the Government Analyst. Every test has its protocols, which are internationally recognized and a test without the observance of its protocols has no sanctity. “Full Protocols” include description of each and every step employed by the Government Analyst through the course of conducting a test. Hence, the Report under Rule 6 must specify every test applied for the determination of the seized substances with the full protocols adopted to conduct such tests.

16. Non-compliance of Rule 6 can frustrate the purpose and object of the Act, i.e. control of production, processing and trafficking of narcotic drugs and psychotropic substances, as conviction cannot be sustained on a Report that is inconclusive or unreliable. The evidentiary assumption attached to a Report of the Government Analyst under Section 36(2) of the Act underlines the statutory significance of the Report, therefore details of the test and analysis in the shape of the protocols applied for the test become fundamental and go to the root of the statutory scheme. Rule 6 is therefore, in the public interest and safeguards the rights of the parties. Any Report (Form-II) failing to give details of full protocols of the test applied will be inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary assumption attached to a Report of the Government Analyst under Section 36(2). Resultantly, it will hopelessly fail to support conviction of the accused. This Court has already emphasized the importance of protocols in Ikramulla’s case.

20. We conclude that Rule 5 of the Rules is directory while Rule 6 is mandatory to the extent that the full protocols ought to be mentioned in the Report of the Government Analyst. Non­compliance of Rule 6, in this context, will render the Report of the Government Analyst inconclusive and unreliable. The representative samples of the alleged drug must be in safe custody and undergo safe transmission from the stage of recovery till it is received at the Narcotics Testing Laboratory.”

10. In the facts and circumstances of the instant case and in view of the above dictum laid down by the Hon’ble Supreme Court, the report of the Chemical Expert relied upon by the prosecution in the instant case being inconclusive and unreliable cannot be made a basis to sustain conviction and sentence of the appellant.

For the above reasons, the appeal is accepted, the impugned judgment dated 28.4.2018 passed by the Special Judge CNS, Quetta in CNS Case No. 140 of 2017 is set aside and while extending benefit of doubt the appellant Gul Hassan son of Fida Hussain is acquitted of the charge under Section 9(c) of the Act in FIR No. 01 of 2016, registered with Police Station, New Sariab, Quetta. The appellant being in custody is ordered to be released forthwith, if not required in any other case.

(A.A.K.)          Appeal accepted