PLJ 2022 Cr.C. 846 (DB)
Control of Narcotic Substances, 1997 (XXV of 1997)--
----S. 27--Requirement of S. 27--Shifting of recovered narcotics by raiding agency to their said police station is sufficient to fulfill requirements of Section 27 of CNS Act, according to which recovered contraband material must be deposited with officer in charge of nearest police station having requisite facilities and records to ensure that all material is kept in safe custody and there is no scope of its being lost or tampered with--When requirement of all material is kept in safe custody and there is no scope of its being lost or tampered with--When requirement of Section 27 of CNS Act is fulfilled by depositing at police station where storeroom (malkhana) and other allied facilities including Register No. 19 are available, there remains no doubt about continuity of chain of safe custody--Chain of safe custody begins with recovery of narcotics; it includes separation of sample and sealing same on spot and it should remain continuous and intact till its dispatch to chemical analyzer and (received by him in same sealed condition--Only, any break in chain of custody or lapse in control of sample would impair conclusiveness of report of chemical analyzer. [P. 850] A
2018 SCMR 2039.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Conviction and sentence--Challenge to--Recovery of charas--It is a vital disagreement--It is not a vital and fatal deviation in respect of factuality of case--It is a fact that sample was in safe custody and same was transmitted from police station and received at laboratory on same day--Hence, if two witnesses said that property was sent by them, it is not a great inconsistency between complainant and Investigation Officer--It is nothing but a trivial and insignificant contradiction, which cannot mar merits of case So far as observance of protocol is concerned, counsel for appellant could not point out how protocol was not observed--The report clearly indicates that test performed was resin test which is usually done for identifying hashish i.e. chars for which complete details of methodology are not necessary--The report of chemical analyzer! in present case shows number of samples and tests performed for identifying whether sample contains THC (Tetrahydrocannabinol), which is basic ingredient of all natural forms of cannabis including hashish (chars)--In circumstances, Court do not find any merits in contention of counsel appearing on behalf of appellant (convict).
[Pp. 850 & 851] B
Mr. Nusrat Ali Shar Balouch, Advocate for Appellant/Convict.
Mr. Shafi Muhammad Mahar, D.P.G. for State.
Date of Hearing: 18.08.2020.
PLJ 2022 Cr.C. 846 (DB)
[Sindh High Court, Sukkur Bench]
Present: Fahim Ahmed Siddiqui and Khadim Hussain Tunio, JJ.
versus
STATE--Respondent
Crl. J. A. No. D-217 of 2016, decided on 18.8.2020.
Judgment
Fahim Ahmed Siddiqui, J.--In the instant appeal, impugned is the judgment dated 05-11-2016 passed by the Court of learned First Additional Sessions/CNS Judge, Khairpur. Through the impugned judgment, the appellant was convicted in a case initiated upon F.I.R. No. 02/2013 lodged at P.S. Excise Police, Kotdiji u/S. 9 (c), Control of Narcotics Substance Act, 1997 and sentence followed as imprisonment for life and fine of Rs. 30,000/-. The impugned judgment further speaks that in case of failure to pay the fine, the appellant has to suffer simple imprisonment for one year and four months more while the benefit of Section 382-B, Cr.P.C. was extended to the appellant.
2. The factual matrix of the case is that the Excise Police Party during routine patrolling stopped a truck near Bus Stop Sodho Khan Aradin at Choondko to Sanghar Road. The said truck was driven by the appellant and loaded with bags of sawdust, which were unloaded and checked in presence of marginal witnesses appointed from the staff of the raiding party. During checking, it was found that amongst the loaded bags, 80 bags containing cannabis grinds/poppy wing 25 kg in each bag totaling 50 mounds. A representative sample of one mound from each bag was taken from the recovered articles and sealed for chemical analysis while the remaining 49 mounds were sealed separately as case property. The case properties including truck and amount of Rs. 800/-recovered from personal search as well as the apprehended person were brought back to the police station, where F.I.R. was lodged.
3. After completing the investigation, the investigators forwarded the accused (appellant) by submitting a charge-sheet to face trial. The trial commenced, after framing of charge, and following a full-fledged trial, the appellant was found guilty as alleged by the prosecution. He was convicted and awarded the sentence as mentioned above for keeping a huge quantity of contraband material.
4. Against the said conviction and sentence, the appellant preferred the instant appeal, which was admitted for regular hearing, as such notices were issued to the prosecution.
5. We have heard the counsel for the appellant and learned prosecutor at length.
6. The learned counsel for the appellant assailed the impugned judgment from different aspects. According to him, on the same date and time, the same complainant has lodged two F.I.Rs, which creates doubt regarding the truthfulness of this case. He emphatically claims that the complainant has foisted the recovered case property on the ground of some animosity. He submits that the complainant and Investigation Officer both claimed that the property was sent by them for chemical analysis, as such on this vital point they are contradicting each other. He further elaborates that the responsible person of the storeroom (malkhana) was not examined, as such the safe custody of the alleged narcotics is questionable. He questions the chemical report also by submitting that neither the protocols were followed nor the test conducted were described, as such the report is not admissible as a proper piece of evidence regarding the recovery of narcotics. According to him, the mala fide is very much manifested from the evidence recorded or produced during the trial, as such the appellant deserves acquittal. In the end, he prays for setting aside the impugned judgment and acquitting the appellant.
7. On the other hand, the learned prosecutor while opposing the instant appeal submits that a huge quantity of contraband substance was recovered from the possession of the appellant. According to him, there is no chance of foisting of recovered narcotics in such a huge quantity when there is no enmity of the raiding police party with the appellant. He submits that the chemical analyzer report is positive and all the protocols were followed. According to him, there is no contradictory statement on account of two recoveries on one day as both were taken place with time differences. He submits that it was not necessary to examine the clerk or In-charge of the storeroom in respect of safe custody of the recovered narcotics.
8. The counsel for the appellant during his arguments has contended that the appellant was involved in the instant case on the ground of animosity but he could not substantiate such plea of animosity with the raiding police party. He could not point out any convincing material, which may attract that the raiding police party is motivated against the appellant due to some personal grudge or they are instrumental of any third party having animosity with the appellant. Even, the learned counsel could not point out the nature of hostility of police against the appellant, as such the theory of animosity appears to be remote and having no affluence at all. It is also worth mentioning that the appellant has not raised such defence during his statement recorded under Section 342, Cr.P.C. Besides, it is hard to believe that such huge quantity of contraband substance can be foisted just to settle some dispute, as such we are not convinced regarding such defence plea.
9. The learned counsel for the appellant also tried to make it a great point that the complainant and Investigation Officer are not in agreement regarding transmitting the sample for chemical analysis. We shall deal this aspect of the case at later stage but it is a fact that the complainant and investigator both have elaborated that the samples were timely sent for chemical analysis. So far as to safe custody of the recovered narcotics is concerned, it has come on the record that as soon as the recovery was affected and requisite formalities were completed on the spot, the case property and samples were immediately shifted to the police station having sufficient facilities for its safe custody. It is a fact that excise Police Station is a notified police station having requisite facilities in the shape of a storeroom (malkhana) etc. We are of the view that shifting of recovered narcotics by the raiding agency to their said police station is sufficient to fulfill the requirements of Section 27 of the CNS Act, according to which recovered contraband material must be deposited with the officer in charge of the nearest police station having requisite facilities and the records to ensure that all the material is kept in safe custody and there is no scope of its being lost or tampered with. We are of the considered view that when the requirement of all the material is kept in safe custody and there is no scope of its being lost or tampered with. We are of the considered view that when the requirement of Section 27 of the CNS Act is fulfilled by depositing at the police station where storeroom (malkhana) and other allied facilities including Register No. 19 are available, there remains no doubt about the continuity of the chain of safe custody. Chain of safe custody begins with the recovery of narcotics; it includes the separation of sample and sealing the same on the spot and it should remain continuous and intact till its dispatch to the chemical analyzer and (received by him in the same sealed condition. Only, any break in the chain of custody or lapse in the control of the sample would impair the conclusiveness of the report of the chemical analyzer. In this respect reliance may be placed on the case reported as the State through Regional Director ANF vs Imam Bakhsh and others (2018 SCMR 2039). In the present case, there is no break in the chain of safe custody from the recovery of narcotics to the deposit of record room (malkhana) of the concerned police station, which satisfy the requirement of Section 27 of the CNS Act and the same remains undetached till receiving of the sample by the chemical analyzer. We are; therefore, of the considered view that there is no lapse in any manner regarding safe custody of the recovered contraband material.
11. The upshot of the above discussion is that we do not find misreading, non-reading of evidence in the judgment of the trial Court. After perusing the entire impugned judgment, we could not find any illegality or irregularity either. The instant criminal Jail Appeal is dismissed. The conviction and sentence awarded by the trial Court are maintained. These are the reasons of our short dated 18.08.2020 by which the instant criminal Jail appeal was dismissed.
(A.A.K.) Appeal dismissed
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