2017 M L D 674
[Balochistan]
Before Abdullah Baloch and Muhammad Hashim Khan Kakar, JJ
MOHSIN ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.269 of 2015, decided on 19th December, 2016.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotics ---Appreciation of evidence ---Allegation against accused was
that 87kgs heroin was recovered from the vehicle of accused---Two hundred grams of heroin was
separated for chemical analysis and was sent to Forensic Scienc e Laboratory ---Recovered
substance, after chemical analysis was found heroin---Prosecution failed to prove that accused
was the owner or in possession of the vehicle at the time, when recovery was effected from the
said vehicle ---Nothing had brought on rec ord that the Investigating Officer had approached the
concerned Excise Department, from where the verification of the vehicle could easily have been
made---Circumstances established that no investigation in such behalf was carried out by the
Investigating Officer---Prosecution had failed to establish that after the alleged recovery, the
substance so recovered was either kept in safe custody or that the samples drawn from the
substance were safely transmitted to the office of Forensic Science Laboratory with out being
tampered with or replaced while in transit---Accused was acquitted in circumstances by setting
aside conviction and sentence recorded by Trial Court.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 &
6---Possession of narcotic substance ---Appreciation of evidence ---Chemical Examiner Report ---
Safe custody of narcotic substance---Proof ---Allegation against accused was that 87 -kgs heroin
was recovered from the vehicle of accused ---Two hundred grams of heroin was separated for
chemical analysis and was sent to Forensic Science Laboratory ---Relevant law on the subject
provided two prescribed form, manner and procedure for certification of test or analysi s of
narcotic substances ---Neither any protocol was mentioned in the report nor any test was referred
to on the basis whereof the Chemical Expert had concluded that the samples sent for examination
contained heroin---Said report did not contain the signatures of two authorized officers as well as
the name of police officer, who had taken the contraband to the office of the Chemical examiner -
--Admittedly, no such police officer had produced to depose about safe custody of the samples
entrusted to him for bei ng deposited in the office of Chemical Examiner ---Such report, suffered
from legal flaws which could not be considered as conclusive proof and was not to be considered
as admissible in evidence ---Non-conclusive and non- speaking Laboratory Report, which was not
compiled according to mandate of law and rules framed thereunder, could not be relied for
conviction---Accused was acquitted, in circumstances by setting aside conviction and sentence
recorded by Trial Court.
Ikramullah v. State 2015 SCMR 1002 rel.
(c) Administration of justice ---
----If procedure prescribed by law was not complied with, that would amount to violation of law.
Ayaz Zahoor for Appellant.
Shaukat Ali Rakhshani, Special Prosecutor, ANF for the State.
Date of hearing: 13th December, 2016.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.269 of
2015 filed by the appellant Mohsin son of Lal Hussain, against the judgment, dated 11th August
2015 (hereinafter referred as, "the impugned judgment") passed by learne d Special Judge Control
of Narcotic Substances, Balochistan Quetta (hereinafter referred as, "the trial Court"), whereby
the appellant was convicted under section 9(c) of Control of Narcotic Substances Act, 1997 and
sentenced to suffer imprisonment for lif e with fine of Rs.200,000/ - (Rupees two lacs) or in
default thereof to further suffer one (01) year S.I., with the benefit of section 382- B, Cr.P.C.
2. Facts of the case are that on 12th February 2014 the complainant Sobedar Sharif Ahmed,
lodged FIR No.02/ 2014 at Police Station ANF Turbat under section 9 (c), 1997, stating therein
that the superior officer of ANF recorded spy information with regard to transportation of huge
quantity of heroin from Turbat to Jewani, on this information he along with other officials
reached Gwadar Road near D -Chowk, where they erected Naka, at about 06.00 p.m. a Toyota
Surf was sighted from Turbat, which was intercepted by them, the person sitting on driving seat
was alighted from vehicle, who on query disclosed his name as M ohsin, during preliminary
investigation, the accused made disclosure that he along with Haji Hamid and Khalil concealed
heroin in vehicle in order to smuggle it to foreign country, thereafter, the search of the vehicle
was resulted into recovery of five sa cks containing heroin, on weighing it became 87- Kgs, out of
which 200- grams heroin was separated from each sack for chemical analysis and sealed in parcel
Nos.1 to 5, while the remaining heroin was sealed in parcel Nos.6 to 10.
3. In pursuance of above FIR , investigation was entrusted to PW -3 Muhammad Ehsan,
SI/IO, who during investigation took into possession the recovered contraband; arrested the
appellant and subjected him to investigation; recorded the statements of witnesses under section
161 Cr.P.C.; sent the samples for analysis and on receipt of report in affirmative submitted the
challan in the trial Court.
4. At the trial, the prosecution produced three witnesses. The appellant was examined under
section 342, Cr.P.C. However, the appellant neither recorded his statement on oath under Section
340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and hearing the
arguments, the trial Court awarded conviction to the appellant as mentioned above, whereafter
the instant appeal ha s been filed.
7. Heard the learned counsel and perused the record. According to the case of prosecution,
the ANF Authorities on receipt of spy information with regard to transportation of huge quantity
of contraband, erected a Naka at Gwadar Road near D -Chowk and during checking of vehicles,
the Toyota Surf vehicle being plied by the appellant, while the acquitted accused Abdul Hamid
as well as absconding accused Khalil Ahmed were also accompanying him, was searched, which
resulted into recovery of five sacks, four sacks containing 20/20 Kgs, while one sack containing
7-Kgs Heroin total 87- Kgs, hence from each sack 200 -grams Heroin were separated for chemical
analysis and sealed in parcel Nos.1 to 5 and were sent to FSL. The FSL authorities separately
analyz ed each five parcels and issued five analysis reports (Ex.P/3- D to Ex.P/3- H). All the five
analysis reports are on similar pattern. However, for facilitation the analysis report Ex.P/3- D is
reproduced herein below: --
"OFFICE OF THE FEDERAL GOVERNMENT ANALYST.
BALOCHSITAN QUETTA.
GPA. (H)3 -ANF No.5929/ -
Dated 20.02.2014
Phone No.081- 9213243
Subject: REPORT ON THE ANALYSIS OF THE SEALED SAMPLE OF
SUSPECTED MATERIAL (200 -Grams Parcel No.01) FORWARDED BY POLICE
STATION ANTI NARCOTIC FORCE TURBAT.
A duly sealed one parcel received by hand official of the ANF on 14- 02-2014. vide letter
No.02/2014/PS/ ANF/TBT/100/2014 of PS ANF TURBAT in the case FIR No.02/2014
dated 1202- 2014, offence under section 9- C, 15 CNSA/1997 PS ANF Turbat, State v.
Mohsin Son of Lal Hussai n and Others, containing suspected material 200- Grams.
CHEMICAL EXAMINATION.
Chemical examination in respect of the above suspected material was carried out by
applying Regent Test, during which 30 -Grams suspected material from sample was
consumed in the examination process.
OPINION: -
Chemical analysis of suspected material was conducted which finally received that all
said suspected material contained "Heroin (Crystal).
30-Grams Heroin (Crystal). Is consumed during the examination process of case
propert y, the remaining amount of 170- Grams Heroin (Crystal) is returned back.
Sd/-
(ABDUL MUSAWIR)
Federal Government Analyst.
Balochistan, Quetta "
It is necessary to mention here that Section 36 of the Act and the Rules 5 and 6 of the
Narcotic Substances (Government Analysts) Rules, 2001 (hereinafter referred as, "the
Rules") provides two prescribed forms, i.e. Form -I and Form -II; the Form -II, prescribes
the manner and procedure for certification of test or analysis of narcotic drug or
psychotropic substance. F or facilitation, Form- II is reproduced herein under: --
FORM II
(See rule 6)
CERTIFICATION OF TEST OR ANALYSIS BY FEDERAL
NARCOTIC TESTIM LABORATORY GOVERNMENT ANALYST.
1. Certified that the sample bearing on . purporting to be sample of received on . With
memorandum No. . analyzed and the result of each test/analysis is stated below;
2. The condition of the seal on the packet on receipt was as follows;
Satisfactory/Unsatisfactory/None.
3. In the opinion of the undersigned the sample is as defined in the Sec tion-2 of the CNS
Act, 1997.
4. DETAILS OF THE RESULTS OF TESTS/ANALYSIS:
Sample No .
Gross Wt: ..Net Wt
FIR
No .. Dated .
Accused
Physical
Examination
CONCLUSION'
NOTE: In case of mixture the %age of each Alkaloids. Opium derivatives, Opiates .
Cannabis, Drugs of abuse and the synthetic compounds are as follows: --
The sample identified as and contains %
Signature of Government Analyst
Federal Narcotics Testing Laboratory
Signature of any other authorized
Office of Laboratory."
8. The minute perusal of both the Chemical Examiner Report Ex.P/3- D and Form -II would
establish the fact that the report Ex.P/3 -D bears only one signature of the Federal Government
Analyst, whereas Section 36 of the Act and the Rules 5 and 6 of the Rules of 2001 prescribes
Form -II, which stipulates the signatures of two authorized officers of the Laboratory. The report
is silent about the necessary protocols, the test applied and the result. Neither any protocol
mentioned in the report nor any test was referred to on the basis whereof the chemical expert has
concluded that the samples sent for examination contained Heroin. Similarly, the report does not
contain the signatures of two authorized officers as well as the name of police officer, who had
taken the contra band to the office of the Chemical examiner and admittedly no such police
officer had been produced in the Court to depose about safe custody of the samples entrusted to
him for being deposited in the office of the Chemical Examiner. Furthermore, the law h as
provided scope for person throwing challenge to the expert's report to rebut the same and in this
regard reference has been made to subsection (2) of Section 36 of the Act.
9. According to settled principles of law the burden on prosecution to prove its case cannot
be shifted to the accused in artificial manner when the law contemplates and provides a
procedure for doing any act. When such procedure is not complied with, it amounts to violate the
law. The signatures of two authorized officers on the chem ical analyst report are mandatory
under the Rules, 2001 and it is also necessary that the report shall contain the necessary protocols
and procedure/tests applied for in reaching the conclusion that the samples received by the
laboratory are narcotic drug or psychotropic substance. The report which is suffering from legal
flaws cannot be considered as conclusive proof and would not be termed or considered as
admissible in evidence. Thus, the non- conclusive and non- speaking laboratory report, which was
not c ompiled according to mandate of law and rules framed there under, cannot be relied for
sustaining the conviction. According to Rules 5 and 6 of the Rules, a complete mechanism has to
be adopted by the chemical examiner on receiving the samples and a report is then to be
submitted by him referring to the necessary protocols and mentioning the tests applied and their
results.
Section 36 of the Act requires a Government Analyst to whom a sample of the recovered
substance is sent for examination to deliver the person submitting the sample a signed report in
quadruplicate in the prescribed Form II as provided under Rule 6 of the Rules and if the report
prepared by him has not been prepared in the prescribed manner, then it may not qualify to be a
report in the c ontext of section 36 of the Act so as to be treated a "conclusive proof" of recovered
narcotic substance from an accused person. Reliance in this regard is placed on the case of
Ikramullah v. State 2015 SCMR 1002. Relevant relevant portion is reproduced he rein below: --
". We have particularly noticed that the report submitted by the Chemical Examiner
(Exhibit -P.W 2/5) completely failed to mention the basis upon which the Chemical
Examiner had come to a conclusion that the samples sent to him for examination
contained charas. According to Rules 5 and 6 of the Control of Narcotic Substances
(Government Analysts) Rules, 2001 a complete mechanism is to be adopted by the
Chemical Examiner upon receipt of samples and a report is then to be submitted by him
referri ng to the necessary protocols and mentioning the tests applied and their results but
in the case in hand we note that no protocol whatsoever was mentioned in the report
submitted by the Chemical Examiner and no test was referred to on the basis of which th e
Chemical Examiner had concluded that the samples sent to him for examination
contained charas. In the context of the present case Rule 6 is of paramount importance
and the same is reproduced below:
"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."
A bare look at the report submitted by the Chemical Examiner in the present case s hows
that the entire page which was to refer to the relevant protocols and tests was not only
substantially kept blank but the same had also been scored off by crossing it from top to
bottom. This surely was a complete failure of compliance of the relevant rule and such
failure reacted against reliability of the report produced by the prosecution before the
learned trial Court. Section 36 of the Control of Narcotic Substances Act, 1997 requires a
Government Analyst to whom a sample of the recovered substanc e is sent for
examination to deliver to the person submitting the sample a signed report in
quadruplicate in "the prescribed form" and, thus, if the report prepared by him is not
prepared in the prescribed manner then it may not qualify to be called a repo rt in the
context of section 36 of the Control of Narcotic Substances Act, 1997 so as to be treated
as a "conclusive" proof of recovery of narcotic substance from an accused person.
5. In the case in hand not only the report submitted by the Chemical Exami ner was
legally laconic but safe custody of the recovered substance as well as safe transmission of
the separated samples to the office of the Chemical Examiner had also not been
established by the prosecution. It is not disputed that the Investigating Off icer appearing
before the learned trial court had failed to even to mention the name of the police official
who had taken the samples to the office of the Chemical Examiner and admittedly no
such police official had been produced before the learned trial C ourt to depose about safe
custody of the samples entrusted to him for being deposited in the office of the Chemical
Examiner. In this view of the matter the prosecution had not been able to establish that
after the alleged recovery the substance so recover ed was either kept in safe custody or
that the samples taken from the recovered substance had safely been transmitted to the
office of the Chemical Examiner without the same being tampered with or replaced while
in transit."
12. Thus, for the above reasons , it would be unsafe to rely upon the analysis report Ex.P/3- D
and to base the conviction of the appellant, hence no implicit reliance could be placed upon the
same, but the trial Court while awarding conviction to the appellant has absolutely failed to
observe and consider all these material aspects of the case, which resulted into miscarriage of
justice.
17. Nothing has come on record to show that the appellant was the owner of the vehicle. The
Investigating Officer in his examination -in-chief has mention ed that he has approached the
Excise and Taxation Department at Turbat for verification of the alleged vehicle, but no reply
has been received from quarter concerned. The Investigating Officer has failed to place on record
any letter suggesting that actual ly he had made investigation to prove the ownership of the
vehicle. Mere words of the Investigating Officer with regard to making quarries regarding
ownership of the vehicle are not enough to prove that the appellant was the owner or in
possession of the vehicle at the time when recovery was effected from the said vehicle. Even
otherwise, nothing has brought on record that the I.O. has approached the Excise Directorate at
Quetta or CPLC at Karachi, from where the verification of the vehicle could easily hav e been
made. It seems that no investigation in such behalf was carried out by the I.O.
19. In view of the above circumstances, the prosecution has failed to establish that after the
alleged recovery, the substance so recovered was either kept in safe cust ody or that the samples
drawn from the substance were safely transmitted to the office of FSL Quetta without being
tampered with or replaced while in transit.
For the above reasons, the appeal is accepted. The impugned judgment dated 11th
August, 2015 pas sed by learned Special Judge Control of Narcotics Substance, Balochistan
Quetta is set aside and the appellant Mohsin son of Lal Hussain, is acquitted of the charge under
section 9(c) of CNS Act, 1997, in FIR No.2/2014 at Police Station ANF Turbat. The appellant
being in custody is ordered to be released forthwith, if not required in any other case.
JK/7/Bal Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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