--S. 9(c)--Conviction and sentence--Challenge to--Recovery of opium, charas, .12 bore guns .9 Mm pistol and live bullets, Rs. 45,000/--

 PLJ 2021 Cr.C. (Lahore) 378 (DB)

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

----S. 9(c)--Conviction and sentence--Challenge to--Recovery of opium, charas, .12 bore guns .9 Mm pistol and live bullets, Rs. 45,000/---Chemical examination report prepared in view of outdated/old interpretation of Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 as directory, under which its non-observance would not have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 on alleged drugs by mentioning each test and names of all protocols applied to carry out result without which, report so prepared by Government Analyst shall be invalid--Report of Chemical Examiner said requirement was not fulfilled--Only test performed on receipt items were mentioned--Besides, Chemical Examiner’s report does not bear number--No evidence to effect that sample was received by ASI (PW-1) from Excise & Taxation Officer (ETO) is on record--According to this witness, handed over 20 sealed samples parcels of charas and two packets of opium to him on 15.07.2011 but he deposited it on 19.07.2011 after four days, because stamp of Excise Office was missing but he personally retained contraband and did not deposit it in Malkhana raising the/chain of custody--Even otherwise, said report reveals that 20 received packets were of charas and 2 were of opium, but their separate analytical reports were not made--Lastly, said report did not contain signatures of Chemical Examiner but only of Assistant Chemical Examiner--These illegalities in ascertaining nature of contraband as charas and opium created serious dents in prosecution story, benefit of which must goes\ to appellant--It cannot be safely said that conviction of appellant was based on prosecution case proved beyond any reasonable doubt--Appeal was allowed by giving him benefit of doubt.              

                                                  [Pp. 381, 382 & 384] A, B, C, D, E & F

2018 SCMR 2039, 2019 SCMR 930, 2015 SCMR 1002.

Mr. Muhammad Mumtaz Faridi, Advocate for Appellant.

Mr. Nisar Ahmad Virk, DPG for State.

Date of hearing: 22.1.2020.

 PLJ 2021 Cr.C. (Lahore) 378 (DB)
Present: Ali Baqar Najafi and Syed Shahbaz Ali Rizvi, JJ.
GHULAM RASOOL @ SANA ULLAH--Appellants
versus
STATE, etc.--Respondents
Crl. A. No. 224-J of 2014, heard on 22.1.2020.

Order

Ali Baqar Najafi, J.--Through this appeal under Section 48 of Control of Narcotic Substances Act, 1997 read with Section 410, Cr.P.C., the judgment dated 16.05.2014 passed by the learned Additional Sessions Judge, Faisalabad has been challenged whereby the appellant was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life with fine of Rs. 1,00,000/- in default whereof to undergo further simple imprisonment for six months. Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.

2. Brief facts of the prosecution case against the appellant are that on 11.07.2011, Bashir Ahmad, S.I. along with Muhammad Khalid No. 4908/C, Qamar Abbas No. 2615/C, Aziz Ullah No. 1582/C, Muhammad Haroon No. 5129/C were present near Bijli Ghar Jaranwala Road on patrolling where they received a spy information that Ghulam Rasool/appellant, a comrade of inter-divisional drug peddler, Arshad Kamoka @ Don, was coming on a car bearing Registration No. 564/LRJ from the side of link road 208/RB towards Dhudhi Wala, having huge quantity of narcotics substance. On receiving this information a raiding party was constituted and established a picket on bridge of Rajbah Dhudhi Wala. After some time, a Suzuki Mehran Car No. LRJ/564 came from the side of Ring road, 208/R.B. and on the pointation of the informer the car was intercepted and the accused Ghulam Rasool alias Sana Ullah was apprehended two (2) packets of opium, one kilogram each and twenty (20) packets of charas of one kilogram each, two .12 bore guns, two magazines, a bag having 50 live cartridges of .12 bore gun, black box made of plastic having .9 MM pistol along with three magazines, having 48 live bullets and Rs. 45,000/- were recovered from the car and personal search of the appellant. From the recovered narcotics substance 10 grams of each charas and opium were separated for chemical analysis. Both samples and remaining Charas were secured through separate sealed parcels with recovery memo. (Exh.PB). The car Suzuki Mehran LRJ/564 was also taken into possession vide recovery memo. (Exh.PC) and recovered .12 bore guns, magazines, 50 live cartridges of .12 bore, pistol .9 MM, 3 magazines as well as 48 live bullets vide recovery memo. (Exh.PD). Thereafter a complaint (Exh.P.A) was drafted and sent to the police station for registration of formal FIR.

3. After due investigation, a report under Section 173, Cr.P.C. was submitted against the appellant. Copies of relevant documents were delivered to the appellant and charge was framed on 13.10.2011 to which he pleaded not guilty and claimed trial. The learned trial Court, after completion of trial, vide judgment dated 16.05.2014 found the appellant guilty, therefore, convicted and sentenced him as mentioned above.

4. Arguments decided. Record perused.

5. After hearing the learned counsel for the appellant and the learned prosecutor it is straightway observed that the chemical examination report (Exh-PF) prepared in view of the outdated/old interpretation of Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 as directory, under which its non-observance would not have invalidated the trial. Section 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 test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified 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).”

6. 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 which, 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”.

7. In the more recent judgment in Crl. Petition No. 733 of 2019 titled “Qaiser Javed Khan vs. The State through Prosecutor General Punjab, Lahore & 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 Kair-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 “.

8. Based upon the above latest law, we have noted that report of Chemical Examiner (Exh.PF) the said requirement was not fulfilled as required in Imam Bakhsh’s case supra. Only the test performed on the receipt items were mentioned. The scanned copy of the report (Exh.PF) is as under:

9. Besides, the Chemical Examiner’s report does not bear the number. No evidence to the effect that the sample was received by Tahir Mehmood, ASI (PW-1) from the Excise & Taxation Officer (ETO) is on the record. According to this witness, Khalid Akhtar/HC handed over 20 sealed samples parcels of charas and two packets of opium to him on 15.07.2011 but he deposited it on 19.07.2011 after four days, because the stamp of Excise Office was missing but he personally retained the contraband and did not deposit it in Malkhana raising the doubt in the chain of custody. Even otherwise, the said report (Exh-PF) reveals that 20 received packets were of charas and 2 were of opium, but their separate analytical reports were not made. Lastly, the said report did not contain the signatures of the Chemical Examiner but only of the Assistant Chemical Examiner. These illegalities in ascertaining the nature of contraband as charas and opium created serious dents in the prosecution story, the benefit of which must goes to the appellant.

10. Keeping in view the above, it cannot be safely said that the conviction of the appellant was based on the prosecution case proved beyond any 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 levelled 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