PLJ 2022 Cr.C. 492 (DB)
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Safe custody--Acquittal of--50 small packets containing heroin total 11 grams were recovered from his pocket--Upon further search of accused chemical in shape of powder (of heroin origin) total 3-KGs and 970 grams (P-5) was also recovered--Chain of safe custody has not been indubitably established by prosecution--Case carrying harder sentence must be proved through credible and persuasive evidence and transparent process in order to rule out possibility of any error--A single circumstance creating reasonable doubt would be sufficient to smash veracity of prosecution case--Conviction and sentence recorded by trial Court are set aside and appellant is acquitted of charge.
[Pp. 496, 497 & 499] A, B, C, D & E
2021 SCMR 451; 2021 SCMR 363; 2019 SCMR 2004; 2021 SCMR 49; PLD 2012 SC 380; 2009 SCMR 579; 2019 SCMR 1217 ref.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Safe custody--Vital steps, which are obligatory to ensure conviction of an accused through maintaining chain of safe custody, are formulated hereinafter to ensure effective investigation and successful prosecution in cases relating to narcotics:
• Any police officer setting up a picket, conducting a raid on spy information or otherwise or leaving police station for patrolling must enter in relevant police register his departure and arrival--Incorporation of arrival and departure by police officer in register No. 2 maintained under Police Rules, 1934 (hereinafter "Rules") is mandatory--The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at police station or elsewhere, with a statement of nature of their duty must be incorporated in aforesaid register--This entry shall be made immediately on arrival or prior to departure of officer concerned and shall be attested by him personally by signature or seal--Every police officer of or above rank of head constable, when returning from duty other than an investigation in which case diaries are submitted, shall have an entry made in daily diary by station clerk or his assistant showing places he has visited and duties performed by him during his absence from police station. Such entries provide corroboration qua alleged recovery of narcotics and arrest of accused and absence of such entries in relevant register creates doubt which goes in favour of accused.
• The parcels of sample and rest of bulk quantity (case property) shall be secured with sealing wax bearing seal impression of responsible/relevant police officer and shall be properly marked and labeled--Thereafter such parcels shall be sent to be kept in safe custody in store room as prescribed under Rules--Entries regarding depositing and removal of said case property subsequently shall be entered in police register No. 19 as provided in Rules.
• Statements of police officials, recovering narcotics from accused, making parcels of case property, transporting same from crime scene to store room to be kept in safe custody, receiving it and keeping it in store room, handing over sample parcels for further transmission to forensic lab and depositing those parcel in forensic lab, must be recorded under Section 161, Cr.P.C. and they must be produced as witnesses during trial to prove fact that narcotics substance as produced in forensic lab and before Court is same which was recovered from accused at crime scene.
• While transmitting sample parcels to forensic lab process provided in rules must be adhered to qua obtaining road certificate from register No. 21 of police station as mentioned in aforementioned rules--Copy of such road certificate should also be made part of case file.
• The police official who transmits complaint to police station for registration of FIR and official who jots down crime report under Section 154, Cr.P.C. in relevant register should be produced before Court as witnesses in order to eliminate all doubts qua culpability of a drug paddler.
• Prosecutor must ensure that no prosecution witness, who is necessary to prove chain of safe custody, is left out--Production of these witnesses before trial Court is eventually responsibility of prosecutor--It is mandatory upon him to perform his functions and exercise his powers fairly, honestly, with due diligence in public interest and to uphold justice.
• It has also been observed by this Court that sometimes crucial incriminatory piece of evidence is not put to an accused, which ultimately results in his acquittal--Trial Court should be very cautious and vigilant, while recording statement of accused as envisaged under Section 342, Cr.P.C. and should make sure that every piece of evidence available on record is put to accused.
• In addition to aforementioned steps, Punjab Forensic Science Agency issued directions in year 2012 to establish valid chain of custody of recovered narcotics, which unfortunately could not be followed strictly--These direction must be followed too and same are reproduced hereafter:-
For a valid chain of custody, all items of evidence must be labeled with following information:
• Name of victim or suspect.
• Case number.
• Type of specimen (i.e., Narcotic Plant material, narcotic medicines, Injections, cigarettes, used syringes, Chars, capsules, opium).
• Amount of sample.
• Time and date of collection.
• Names, stamp, designation of person collecting sample.
Finally, sample collected must be sealed with molten wax seal to document specimen integrity--A reference seal sample must be attached along with packed sample. [Pp. 502, 503& 504] F
M/s. Muhammad Luqman and Rao Matloob Ahmed, Advocates for Appellant.
Mr. Mohammad Ali Shohab, Deputy Prosecutor General for State.
Date of hearing: 13.10.2021.
PLJ 2022 Cr.C. 492 (DB)
[Lahore High Court, Multan Bench]
Present: Ali Zia Bajwa and Muhammad Shan Gul, JJ.
versus
STATE and another--Respondents
Crl. A. No. 94 of 2017, heard on 13.10.2021
Judgment
Ali Zia Bajwa, J.--This criminal appeal is preferred against the judgment dated 21.02.2017, passed by the learned Additional Sessions Judge/Judge Special Court-CNSA, Vehari; who, while adjudicating upon case FIR No. 560/2015, dated 19.12.2015, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered with Police Station Danewal Vehari, convicted and sentenced the appellant, as under:-
Ø Under Section 9(c) of the Control of Narcotic Substances Act, 1997, sentenced to undergo R.I. for eight years with fine of Rs. 70,000/- and in case of default in payment thereof, to further undergo S.I. for eight months.
Ø Benefit of Section 382-B, Cr.P.C. was extended in favour of the appellant.
2. Precisely, resume of prosecution case as structured in the FIR (Exh.PC) lodged on the basis of complaint (Exh.PB) of Rasheed Ahmed, Inspector (PW-2) is that on 19.12.2015, complainant along with Saeed Ahmed ASI, Maqbool Ahmed ASI, Rasheed Ahmed 614/HC, Ghulam Mustafa 447/C, Abdul Ghaffar 1219/C, Sharafat Ali 1252/C and Shahid Ibrahim 1018/C of CIA Staff, was present in his office. He received spy information that one person was selling contraband (heroin) infront of his house situated behind
4. After completion of the prosecution evidence, statement of the appellant, as envisaged under Section 342, Cr.P.C. was recorded by the learned trial Court. He professed his innocence and pleaded false implication in the case. He neither opted to get his statement recorded under Section 340(2), Cr.P.C., nor did he produce any defence evidence. Upon completion of trial, the learned trial Court having found the case against the appellant to have been proved beyond any reasonable shadow of doubt, convicted and sentenced him as mentioned and detailed above.
5. Arguments heard, record perused.
6. The main crux of arguments advanced by learned counsel for the appellant is that chain of safe custody of recovered contraband in this case could not be established during the course of trial. While elaborating his arguments learned counsel contended that according to prosecution version the complainant handed over the case property to Altaf Hussain SI (PW.5) but according to him same was handed over to Ghulam Mustafa 447/C, CIA, who was not produced as a witness during the course of trial. In order to evaluate the contention of learned counsel for the appellant, we have minutely scrutinized the material available on record and observed that while making his statement during the course of trial Altaf Hussain, S.I. (PW-5)/Investigating Officer stated that the complainant handed over case property to Ghulam Mustafa 447/C, CIA. Relevant extract out of his statement is reproduced as under:
“Rasheed Ahmad Inspector/complainant handed over case property of this case i.e. two sealed parcels as sample and two sealed parcels as case property of heroine along with sale proceed Rs. 3,380/- to Ghulam Mustafa 447/C, CIA.”
The chain of custody or safe custody and safe transmission of 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 with the law enforcement agency and then dispatch of the representative samples of the narcotic drugs to the office of the chemical examiner for examination and testing. This chain of custody must be safe and secure. This is because, the Report of the Chemical Examiner enjoys critical importance under CNSA and the chain of custody ensures that correct representative samples reach the office of the Chemical Examiner. Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic drug or its representative samples makes the Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused. The prosecution, therefore, has to establish that the chain of custody has been unbroken and is safe, secure and indisputable in order to be able to place reliance on the Report of the Chemical Examiner.
In a recent judgment of august Supreme Court of Pakistan in Qaiser Khan’s Case[1] it has been held as under:
“The law in this regard is settled by now that if safe custody of narcotics and its transmission through safe hands is not established on the record, same cannot be used against the accused.”
It was also held in Zahir Shah alias Shat v. The State through Advocate-General, Khyber Pakhtunkhwa - 2019 SCMR 2004 that:
“This Court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction”
In another recent verdict the prestigious Supreme Court of Pakistan extended benefit of broken chain of safe custody to appellant in Zubair Khan's Case[2] and acquitted him. In successive verdicts,[3] where chain of safe custody and transmission for forensic analysis was compromised, honorable Supreme Court of Pakistan extended the benefit of doubt to the appellants.
“Punishments provided in the Control of Narcotic Substances Act, 1997 were quite stringent and long, if not harsh, and, thus, a special care had to be taken that a Court trying such an offence had to be convinced that the entire quantity allegedly recovered from the accused person's possession was indeed narcotic substance. We, reverently and respectfully, tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: the harsher the sentence the stricter the standard of proof.”
10. Before parting with the judgment, it would be advantageous to identify the root cause of failure of prosecution against the drug pushers as matter of routine due to flawed investigation and shoddy prosecution. Foremost cause of acquittal in narcotics cases is absence of chain of safe custody despite of the fact that apex Court of this Country elaborated concept of chain of safe custody recurrently in series of judgments as referred to above. To maintain the chain of safe custody in narcotics cases is most critical procedure for successful prosecution of an accused. It is imperative and a must to assure the Court of law that sample of narcotics substance sent to forensic lab and bulk quantity presented before it is same as allegedly recovered from the accused at the crime scene. It further postulates that the case property continuously remained in the custody of a person designated to handle it. The continuity of safe possession or custody of recovered narcotics substance, from its transportation from the place of recovery (at the scene of a crime or from a person) to designated store room, further transmission of samples to the laboratory for examination and presentation of rest of the bulk quantity before the trial Court from store room, is known as the chain safe of custody.
11. The Control of Narcotics Substance Act, 1997 (CNSA) provides stringent provisions for offenders involved in narcotics selling, possession and trafficking. Despite the fact that major offences under the aforesaid Act are non-bailable, it has been observed that in numerous cases the drug offenders secure acquittal on technical grounds. A large number of offenders involved in narcotics cases are acquitted due to compromised chain of safe custody. The acquittals in serious offences particularly in narcotics cases raise serious concerns amongst the masses qua the performance of investigating agencies and prosecution department other than seriously jeopardizing the effort to eliminate menace of drugs from society.
12. Maintaining the chain of safe custody is a legal and professional responsibility of investigating agency and subsequently presenting it before the trial Court by the prosecution. Role of investigating agency and prosecution is equally crucial to ensure the conviction of an accused in criminal cases. Duty of Investigating Officer is to collect the evidence and send the same to prosecutor, who is saddled with the duty to present that evidence in Court to prove the guilt of accused. Any slipup in collection of evidence or adducing the same in trial Court results in acquittal of accused. It is observed that at times despite of the fact that investigation report filed by investigating agency under Section 173, Cr.P.C. is compact and contains the plausible evidence to prove the chain of safe custody but same is not properly presented in the trial Court. As such, it is incumbent upon the investigating agencies and prosecutors to perform their assigned duties in a professional manner to achieve the desired object of law. Conviction of an accused is not possible without investigating agency and prosecution complementing each other and playing their respective role under the law.
13. The law regulating the chain of safe custody of recovered narcotics substance and its strict compliance is of utmost significance. Before referring to the law in our country pertaining to the chain of safe custody, it would not be out of place to have a bird eye view of law on the subject matter from neighboring jurisdiction i.e. India. The relevant law is The Narcotic Drugs and Psychotropic Substances Act, 1985 and relevant provision is Section 55 which is reproduced hereunder:
Section 55. Police to take charge of articles seized and delivered.--An officer in charge of a police station shall take charge of and keep in safe custody pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
The Narcotic Drugs and Psychotropic Substances Act, 1985 does not make any special provision regulating storage and safe custody of the contraband substances. All that Section 55 of Narcotic Drugs and Psychotropic Substances Act, 1985 envisages is that the officer in charge of a Police Station shall take charge of and keep in safe custody the seized article pending orders of the Magistrate concerned. But Standing Order No. 1 of 1989 dated 13th June, 1989 prescribes the elaborative procedure to be followed for seizure, sampling, safe keeping and disposal of the seized Drugs, Narcotics and Psychotropic substances, which is being followed throughout the country. It provides a self-explanatory procedure to do the needful.
14. Although in our country under Control of Narcotics Substance Act, 1997 there is no explicit provision regulating the process of safe custody but Control of Narcotic Substances (Government Analysts) Rules, 2001, farmed under Section 77 of the Act ibid provide procedure qua the preparation of samples and their dispatch to forensic lab in order to establish safe custody. Section 516- A, Cr.P.C., 1898, and several rules contained in Police Rules, 1934 provide self-explanatory procedure to be followed to maintain the chain of safe custody of recovered narcotics substance.
15. This matter is of great concern that due to defective investigation and at times poor prosecution accused in narcotics cases succeed to secure acquittal. Forming the chain of safe custody of recovered narcotics substance is a straightforward and uncomplicated procedure. There is nothing onerous or tricky involved in process to maintain and prove such chain but unfortunately such procedure is unheeded, which results in failure of prosecution against the accused of drug cases. It is imperative to create appropriate awareness qua the correct procedures of maintaining the chain of safe custody of narcotics and its importance amongst the officials of investigating agencies dealing with such cases. It is often ignored and given very little significance as a seemingly simple and straightforward procedure, which often results in acquittal of drug paddlers. Still, it must remain in mind that it is the most crucial procedure, which ultimately decides the fate of narcotics cases.
• The parcels of sample and rest of the bulk quantity (case property) shall be secured with sealing wax bearing the seal impression of the responsible/relevant police officer and shall be properly marked and labeled. Thereafter such parcels shall be sent to be kept in safe custody in store room as prescribed under Rules.[6] Entries regarding depositing and removal of said case property subsequently shall be entered in police register No. 19 as provided in Rules.[7]
• While transmitting the sample parcels to forensic lab the process provided in rules[8] must be adhered to qua obtaining road certificate from Register No. 21 of police station as mentioned in aforementioned rules. Copy of such road certificate should also be made part of case file.
• The police official who transmits the complaint to police station for registration of FIR and official who jots down the crime report under Section 154, Cr.P.C. in relevant register[9] should be produced before the Court as witnesses in order to eliminate all the doubts qua the culpability of a drug paddler.
• Prosecutor must ensure that no prosecution witness, who is necessary to prove the chain of safe custody, is left out. Production of these witnesses before the trial Court is eventually responsibility of the prosecutor. It is mandatory upon him to perform his functions and exercise his powers fairly, honestly, with due diligence in the public interest and to uphold the justice.[10]
• In addition to aforementioned steps, Punjab Forensic Science Agency issued directions[11] in year 2012 to establish valid chain of custody of recovered narcotics, which unfortunately could not be followed strictly. These direction must be followed too and same are reproduced hereafter:-
For a valid chain of custody, all items of evidence must be labeled with the following information:
• Name of victim or suspect.
• Case number.
• Type of specimen (i.e., Narcotic Plant material, narcotic medicines, Injections, cigarettes, used syringes, Chars, capsules, opium).
• Amount of sample.
• Time and date of collection.
• Names, stamp, designation of person collecting the sample.
Finally, the sample collected must be sealed with molten wax seal to document specimen integrity. A reference seal sample must be attached along with the packed sample.
Alternatively, all of the samples collected for a given case may be placed in a tamper-evident container labeled with the case number and name.
17. In addition to above, in compliance of direction issued by Honorable Supreme Court of Pakistan in Criminal Petition No. 1402-L of 2016 titled as “State vs. Abdul Haq” Standard Operating Procedure (SOP) was issued in year 2017 after the approval of Provincial Police Officer, Punjab to ensure the chain of safe custody in narcotics cases, and it was circulated throughout the Province among the Investigating Officers, but it proved a futile effort, as usual it had never been followed. We don't have a slightest of hesitation to hold that there is
abundance of laws to ensure chain of safe custody but real challenge lies in implementation of these laws, which, regrettably, has become "mission impossible" which is well reflective from the history of our criminal justice system.
18. Investigation is substratum of every criminal case, therefore any flaw therein, eventually, results in acquittal of culprits. Defective investigation in criminal cases should not be overlooked by the high ups of investigating agencies, responsible for supervision of such process. In presence of a self-explanatory procedure to maintain the chain of safe custody, non-compliance of the same is a criminal act which should be dealt with accordingly. It is high time to curb the pitfalls of defective investigations to ensure the smooth operation of our criminal justice system to bring the actual culprits to book.
19. District Police Officers, in their concerned districts, shall take serious notice of acquittals resulted due to defective investigations and proceed against the delinquent investigators under the relevant provisions of law, which include penal as well as departmental action. Accountability is the glue that bonds commitment to results[12] and where there is no accountability there is no responsibility.
20. Office shall transmit a copy of this judgment to the Inspector General of Police/Provincial Police Officer Punjab, as well as, Director General, Anti-Narcotics Force, who shall make arrangements for its circulation within relevant hierarchy working under their supervision and ensure its compliance in letter and spirit.
(K.Q.B.)
[1]. 2021 SCMR 363
[2]. ZUBAIR KHAN's v. The STATE - 2021 SCMR 49
[3]. ABDUL GHANI and others v. The STATE and others - 2019 SCMR 608, KAMRAN SHAH and others v. The STATE and others - 2019 SCMR 1217, FAIZAN ALI v. State - 2019 S CMR 1649, Mst. Razia Sultana v. The State and another - 2019 SCMR 1300, ZAHIR SHAH alias SHAT v. The STATE through Advocate-General, Khyber Pakhtunkhwa - 2019 SCMR 2004, Haji NAWAZ v. The STATE - 2020 SCMR 687, State v. Imam Bakhsh - 2018 SCMR 2039, Amjad Ali v. The State - 2012 SCMR 577 and Ikramullah and others v. The State - 2015 SCMR 1002
[4]. PLD 2012 SC 380.
[5]. Rule 49 Chapter 22 Police Rules, 1934.
[6]. Rule 11 Chapter 22 Police Rules, 1934.
[7]. Rule 70 Chapter 22 Police Rules, 1934.
[8]. Rule 72 Chapter 22 Police Rules, 1934.
[9]. Rule 1 Chapter 24 Register No. 1.
[10]. Section 12(9) Punjab Criminal Prosecution Service (constitution, functions & Powers) Act, 2006.
[11]. PFSA Introductory Booklet, 2012-Edition available on PFSAGuidelinesEnglish.pdf (punjab.gov.pk).
[12]. Bob Proctor Canadian Author available on: https://daphnewells.com/accountability-is-says-bob- proctor/.
1 Comments
Really appreciating job.. thank u for sharing
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