PLJ 2020 Cr.C. (Note) 15
[Balochistan High Court, Quetta]
Present: NAEEM AKHTAR AFGHAN AND ZAHEER -UD-DIN KAKAR , JJ.
GUL HASSAN --Appellant
versus
STATE --Respondent
Crl. A. No. 150 of 2018, decided on 29.10.2018.
Control of Narcotic Substances Act, 1997 (XXVII of 1997) --
----S. 9(c) --Control Narcotic Substances (Government Analyst) Rules, 2011, R. 4(2) --Conviction
and sentence --Challenge to --Benefit of doubt --Allegation of recovery of contraband --As per
Rule, 4(2) of the Control of Narcotic Substances (Go vernment Analysts), 2001, this exercise
was required to be completed within 72 hours of the recovery, and for this purpose even there
is no plausible explanation brought on record by the prosecution as to why such inordinate
delay was caused in the complet ion of this exercise by the Investigating Officer --This is fatal
to the prosecution case --Prosecution has also failed to examine the police officer, who had
taken the sample to the Chemical Examiner, so that he could have been cross -examined on the
point a s to in whose custody the sealed parcels of the samples of Charas were lying about
twenty -five (25) days, which makes the case of prosecution doubtful and any doubt if arises in
the links of the chain of prosecution story, the benefit of the same will go t o the accused --By
the Hon’ble Supreme Court, the safe custody and safe transmission of the seized narcotics had
not been established --Report of the FSL relied upon by the prosecution in the instant case also
does not contain the full protocols of the test applied for; therefore, the same is not reliable --
By the Hon’ble Supreme Court, the report of the Chemical Expert relied upon by the
prosecution in the instant case being inconclusive and unreliable cannot be made a basis to
sustain conviction and sentence of the appellant --Appeal was accepted.
[Para 6, 7, 8, 9 & 10] A, B, C, D & E
2013 MLD 1527 and 2011 SCMR 820.
Mr. Habib -ur-Rehman, Advocate for Appellant.
Mr. Abdul Mateen, Deputy Prosecutor -General fo r State.
Date of hearing: 25.10.2018.
JUDGMENT
Zaheer -ud-Din Kakar, J. --This Criminal Appeal is directed against the judgment dated
28.4.2018 ( “the impugned judgment” ), passed by the Special Judge, CNS, Quetta ( “the trial
Court” ), in case FIR No. 01 of 201 6 dated 01.01.2016 registered with Police Station, New
Sariab, Quetta, whereby the appellant Gul Hassan son of Fida Hussain has been convicted under
Section 9(c) of the Control of Narcotic Substances Act, 1997 ( “the Act” ) and sentenced to suffer
Rigorous I mprisonment ( RI) for Six (6) years with fine of Rs. 30,000/ - (Rupees thirty thousand),
in default thereof to further undergo for a period of six (6) months Simple Imprisonment ( SI)
with benefit of Section 382 -B, Cr.P.C. for recovery of 01 Kilo and 10 grams Heroin from
possession of the appellant.
2. After formal investigation, report under Section 173 of Cr.P.C. was submitted before
the trial Court and the appellant was sent to face the trial. The trial Court seized with the matter,
framed the charge agains t the appellant under Section 9(c) of the Act to which he pleaded not
guilty and claimed trial. In order to prove the alleged recovery the prosecution examined
following witnesses:
PW-1 IP Khalil Ahmed Bugti complainant has reiterated the contents of murasila,
produced recovery memo of Heroin as Ex P/1-A and murasila as Ex -P/1-B.
PW-2 SI Muhammad Ayaz was marginal witness of recovery memo of Heroin Ex -P/1-A.
PW-3 Naimatullah Tareen, Investigating Officer, con ducted investigation, recorded
statements of witnesses, produced FIR as Ex -P/3-A, incomplete Challan Ex -P/3-B, FSL
report Ex -P/3-L and complete Challan Ex -P/3-D.
3. On completion of prosecution evidence, the accused was examined under Section 342
Cr.P.C ., wherein he professed innocence and denied the allegations leveled against him. The
appellant did not record his statement on oath nor led any witness in his defence. On conclusion
of the trial, the trial Court convicted and sentenced the appellant vide impugned judgment dated
28.04.2018, hence this appeal.
4. Learned counsel for the appellant contended that the prosecution has failed to prove
charge against the appellant beyond reasonable doubt; that there is delay of about twenty -five
(25) days for send ing the alleged sample to the Chemical Examiner, therefore, tampering with
the same cannot be ruled out; that the FSL report is not in accordance with Section 36 of the Act
and Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 as the
same does not disclose the complete protocols nor the same is in quadruplicate; that the report is
inconclusive, therefore the same should have not been used against the appellant. Finally, he
prayed for setting aside of the impugned judgment and ac quittal of the appellant.
5. On the other hand, the learned DPG strongly opposed the appeal and defended the
impugned judgment.
6. We have heard the learned counsel for the parties and have gone through the available
record, which reveals that the alleged recovery was effected on 01.01.2016 at about 5:30 p.m.,
but perusal of Forensic Science Laboratory report (Ex -P/3-C) shows that the samples were
received by the Chemical Expert on 26.01.2016, with delay of about twenty -five (25) days and
such delay has not been explained.
As per Rule, 4(2) of the Control of Narcotic Substances (Government Analysts), Rule
2001, this exercise was required to be completed within 72 hours of the recovery, and for this
purpose, even there is no plausible explanation brought on r ecord by the prosecution as to why
such inordinate delay was caused in the completion of this exercise by the Investigating Officer.
This is fatal to the prosecution case. In this regard, reference can be made to the case
of Muhammad Aslam v. The State reported in 2011 SCMR 820 and Shamsullah v. The State 2013
MLD 1527.
7. The prosecution has also failed to examine the police officer, who had taken the
sample to the Chemical Examiner, so that he could have been cross -examined on the point as to
in whose cus tody the sealed parcels of the samples of Charas were lying about twenty -five (25)
days, which makes the case of prosecution doubtful and any doubt if arises in the links of the
chain of prosecution story, the benefit of the same will go to the accused.
8. In the recent consolidated judgment dated 03.10.2018 passed by Hon’ble Supreme
Court in Criminal Appeals Nos.523 to 525 of 2017, Criminal Appeal No. 494 of 2017, Criminal
Appeal No. 452 of 2017, Criminal Appeal No. 22 of 2018, Criminal Appeal No. 51 of 20 17 and
Criminal Petition No. 94 -Q of 2017 relied upon by learned counsel for the appellant, it has been
held by the Hon’ble Supreme Court as follows:
“We have noted above that in Criminal Appeals Nos.523 to 525/2077 and 22/2018, safe
custody and safe trans mission of alleged narcotics from the spot of recovery till its
receipt by the Forensic Science Laboratory are not satisfactorily established. The chain
of custody begins with the recovery of the seized Charas by the police and includes the
separation of t he representative sample(s) of the seized narcotics and their dispatch to
the Narcotics testing Laboratory. This chain of custody, is pivotal as the entire construct
of the Act and the Rules rests on the report of the Government Analyst, which in turn
rests on the process of sampling and its safe and secure custody and transmission to the
laboratory. The prosecution must establish that the chain of custody was unbroken,
unsuspicious, indubitable safe and secure. Any break in the chain of custody or lapse in
the control of possession of the sample, will cast doubts on the safe custody and safe
transmission of the sample(s) and will impair and vitiate the conclusiveness and
reliability of the report of the Government Analyst thus, rendering it in capable of
sustaining conviction. This Court has already held in Amjad Ali v. State (2012 SCMR
577) and Ikramullah v. State (2015 SCMR 1002) that where safe custody or safe
transmission of the alleged drug is not established, the Report of the Government Analyst
become s doubtful and unreliable.”
In the circumstances of the instant case and in view of the above dictum laid down by the
Hon’ble Supreme Court, the safe custody and safe transmission of the seized narcotics had not
been established.
9. The report of the FSL E x-P/3-C relied upon by the prosecution in the instant case also
does not contain the full protocols of the test applied for; therefore, the same is not reliable.
Reliance in this regard can be placed to the judgment supra, wherein at paras Nos.15, 16 and 2 0
it has been held as follows:
“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 appl ied. 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 experime nt, 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 t he 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 description of each and every step employed by the
Governme nt 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.
16. Non -compliance of Rule 6 can frustr ate the purpose and object of the Act,
i.e. control of production, processing and trafficking of narcotic drugs and psychotropic
substances, as conviction cannot be sustained on a Report that is inconclusive or
unreliable. The evidentiary assumption attach ed to a Report of the Government Analyst
under Section 36(2) of the Act underlines the statutory significance of the Report,
therefore details of the test and analysis in the shape of the protocols applied for the test
become fundamental and go to the root of the statutory scheme. Rule 6 is therefore, in the
public interest and safeguards the rights of the parties. Any Report (Form -II) failing to
give details of full protocols of the test applied will be inconclusive, unreliable,
suspicious and untrustworthy and will not meet the evidentiary assumption attached to a
Report of the Government Analyst under Section 36(2). Resultantly, it will hopelessly fail
to support conviction of the accused. This Court has already emphasized the importance
of pr otocols in Ikramulla’s case.
20. We conclude that Rule 5 of the Rules is directory while Rule 6 is mandatory to the
extent that the full protocols ought to be mentioned in the Report of the Government
Analyst. Non compliance of Rule 6, in this context, wil l render the Report of the
Government Analyst inconclusive and unreliable. The representative samples of the
alleged drug must be in safe custody and undergo safe transmission from the stage of
recovery till it is received at the Narcotics Testing Laborato ry.”
10. In the facts and circumstances of the instant case and in view of the above dictum laid
down by the Hon’ble Supreme Court, the report of the Chemical Expert relied upon by the
prosecution in the instant case being inconclusive and unreliable canno t be made a basis to
sustain conviction and sentence of the appellant.
For the above reasons, the appeal is accepted, the impugned judgment dated 28.4.2018
passed by the Special Judge CNS, Quetta in CNS Case No. 140 of 2017 is set aside and while
extending benefit of doubt the appellant Gul Hassan son of Fida Hussain is acquitted of the
charge under Section 9(c) of the Act in FIR No. 01 of 2016, registered with Police Station, New
Sariab, Quetta. The appellant being in custody is ordered to be released fort hwith, if not required
in any other case.
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