PLJ 2021 Cr.C. (Lahore) 558 (DB)
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6--Conviction and sentence--Challenge to--Recovery of heroin--Chemical examination report prepared in view of outdated/old interpretation of Rule p 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 as directory, therefore, its non-observance would not have invalidated trial--Rule 6 has now been Declared as mandatory, non-observance of which shall invalidate result--Said Rule necessarily requires test and analysis by following protocols alleged drugs by mentioning each test and names of all protocols applied to carry out result without, export so prepared by Government Analyst shall be invalid--Based upon above latest law, we have noted that report of PFSA said requirement was not fulfilled as required in Imam Bakhsh’s case supra--Only test performed on receipt items were mentioned which included top-load balance for weighing, chemical spot tests for presumptive testing and gas chromatography-Mass Spectrometry used for confirmation--Besides, Allah Rakha/Constable/PW-1 deposited simple to FSL whereas, as per FSL Report it was received in office by said police official but according to him he received this sample from Arif Hussain/Moharrir therefore, four (4) days are not explained--Even otherwise, PW-1 had failed to point our any other sample which he deposited before FSL alongwith sample of present case, hence safe custody becomes doubtful, especially when PW-1 could not narrate as to where he stayed in these 4 days and sample was not opened. [Pp. 560, 561 & 563] A, B, C, D & E
2018 SCMR 2039, 2019 SCMR 930, 2015 SCMR 1002.
Mr. Sajjad Hussain Tarar, Advocate for Appellant
Mr. Irfan Ahmed Malik, Special Prosecutor for ANF/State.
Date of hearing: 23.6.2020.
PLJ 2021 Cr.C. (Lahore) 558 (DB)
Present: Malik Shahzad Ahmed Khan and Ali Baqar Najafi, JJ.
Mst. ZAINAB BIBI--Appellant
versus
STATE and another--Respondents
Crl. A. No. 21021 of 2019, heard on 23.6.2020.
Judgment
Ali Baqar Najafi, J.--
Crl. Misc. No. 2/2020.
Learned counsel for the petitioner, on reconsideration, does not press this petition provided the main appeal of the petitioner is fixed today.
2. In the light of the above, this petition is dismissed as having been withdrawn. However, the office is directed to fix the main appesil today after issuance of cause list.
MAIN APPEAL.
3. This appeal under Section 48 of CNSA 1997 is directed against the judgment dated 03.04.2019 passed by learned Addl. Sessions Judge, Faisalabad in case F[R No. 284 dated 29.04.2014 registered under Section 9(c) Control of Narcotic Substances Act, 1997 at Police Station Chak Jhumra, District Faisalabad, whereby the appellant was convicted under Section 9(c) CNSA, 1997 and sentenced to rigorous imprisonment for four (4) years with fine of Rs. 20,000/- and in default thereof, to undergo simple imprisonment for four (4) months. However, the appellant was awarded the benefit of Section 382-B, Cr.P.C.
4. Briefly, the prosecution case as disclosed by Muhammad Akram, S.I./S.H.O./complainant (PW-2) in his compliant (Exh.PB), on the basis of which formal crime report (Exh.PB/1) was registered, is that on 29.04.2014 he along with Abdul Waheed, SI, Muhammad Azam, ASI, Muhammad Aslam, Liaquat Ali, Zulfiqar Ali, Saeed Anwar, constables and Shahida Parveen, No. 506/LC was present in the area of Chak No. 104/JB in connection with patrolling duty when he received an information that the appellant with huge quantity of contraband was present at Pull Jhang Branch, upon which a raid was conducted, the appellant was apprehended and during her search 1043 grams of heroin from the shopping bag carried in her left hand along with sale proceeds of Rs. 1940/-way recovered.
5. After the investigation, report under Section 173, Cr.P.C. was submitted and the learned trial Court after observing the pre-trial codal formalities framed the charge against the appellant on 20.05.2014 to which she pleaded not guilty and claimed trial. The learned trial Court after recording the evidence, completed the trial, vide judgment dated 03.04.2019 found the appellant guilty, therefore, convicted and sentenced her as mentioned above.
6. Arguments heard. Record perused.
7. After hearing the learned counsel for the appellant, learned Special Prosecutor for ANF and perusing the record, it is straightway observed that Exh.PD is the chemical examination report prepared in view of the outdated/old interpretation of Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 as directory, therefore, its non-observance would not have invalidated the trial. Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 is reproduced as under:
“6. Report of result of test or analysis.--After test or analysis the result thereof together with full protocols of the tes applied, shall be signed in quadruplicate and supplied forthwith to the sender as secified in Form-II.”
However, it would be important to observe that in case titled The State through Regional Director ANF versus Imam Bakhsh and others reported as (2018 SCMR 2039). Rule 6 has now been declared as mandatory, the non-observance of which shall invalidate the result. Para 15 of the judgment is reproduced as under:
“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 a 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.” (underlining for emphasis is ours).”
8. It was recently reiterated in case titled Khair-ul-Bashar versus The State reported as (2019 SCMR 930) that said Rule necessarily requires test and analysis by following the protocols on the alleged drugs by mentioning each test and the names of all the protocols applied to carry out the result without, the report so prepared by the Government Analyst shall be invalid, Page 935 of the said judgment is reproduced as under:
“…. Imam Bakhsh purposively interprets the Act and finds Rule 6 to be a mandatory provision regarding information to be reflected in the Report of the Analysts. Hence, the argument that Imam Bakhsh is per incuriam, is hopelessly misconceived and rejected. For completion of. record it is pointed out that review filed in Imam Bakhsh was also dismissed vide an earlier order dated 06.02.2019.”
9. In the more recent judgment in Crl. Petition No. 733 of 2019 titled “Qaiser Javed Khan vs. The State through Prosecutor General Punjab, Lahore and another”, decided on 18.12.2019 the Hon’ble Supreme Court has reiterated the views expressed in Ikramullah (2015 SCMR 1002), Imam Bakhsh (2018 SCMR 2039) and Khair-ul-Bashar (2019 SCMR 930) while holding as follows:
“8. The Report of the Government Analyst in the instant case does not specify the protocols of the tests applied and thus does not meet the requirements of the law as interpreted by this Court in the cases of Imam Bakhsh and Khair-ul-Bashar (supra). The said report cannot be relied upon for the conviction of the petitioner. Therefore, the petition is converted into appeal and allowed. The conviction and sentence of the petitioner, are set aside. He shall be released forthwith if not required to be detained in any other case.
9. We have observed in a number of cases before us that the import of the above cited judgments have not been fully understood in the context of “protocols”, which has been further clarified in this judgment. Therefore, it will be appropriate if a copy of this judgment is dispatched to all the High Courts for their reference and for further circulation to the Trial Courts dealing with such matters and to the Forensic Science Laboratories in their respective areas.”
10. Based upon the above latest law, we have noted that report of PFSA (Exh.PD) the said requirement was not fulfilled as required in Imam Bakhsh’s case supra. Only the test performed on the receipt items were mentioned which included top-load balance for weighing, chemical spot tests for presumptive testing and gas chromatography-Mass Spectrometry used for confirmation. The scanned copy of the report Exh.PD is as under:
11. Besides, Allah Rakha/Constable/PW-1 deposited the simple to the FSL on 01.05.2014 whereas, as per the FSL Report (Exh.PD), it was received in the office by said police official on 02.05.2014, but according to him he received this sample from Arif Hussain/Moharrir on 29.04.2014, therefore, four (4) days are not explained. Even otherwise, PW-1 had failed to point our any other sample which he deposited before FSL along with the sample of the present case, hence the safe custody becomes doubtful, especially when PW-1 could not narrate as to where he stayed in these 4 days and the sample was not opened.
12. Keeping in view the above, it cannot be safely said that the conviction of the appellant was based on the prosecution case proved beyond reasonable doubt. For what has been discussed above, this appeal is allowed, conviction and sentence of the appellant is set aside and he is acquitted of the charge leveled against him by extending the benefit of doubt. He is in custody, be released forthwith if not required to be detained in any other case.
(A.A.K.) Appeal allowed
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