2021 Y L R 457
[Balochistan]
Before Muhammad
Hashim
Khan Kakar and Rozi Khan Barrech, JJ
NASAR UD DIN--- Appellant
Versus
The STATE ---Respondent
Criminal Appeal No. 386 of 2019, decided on 31st December, 2019.
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 narcotics ---Report of Government Analysts ---Failure of Analysts to
mention full protocols of tests applied---Effect ---Prosecution case w as that on spy
information, police intercepted the vehicle of accused and recovered sixty seven packets of
charas, weighing eighty kilograms from its secret cavities ---First Information Report as well
as the memorandum of recovery showed that a consolidate d sample of 670 grams had been
separated from the 67 packets taken into possession---No separate samples had been secured
and tested vis -a-vis the substance, contained in each packet ---Consolidated sample of 670
grams of recovered substance was then tested positively by the Chemical Examiner---
Samples had to be secured from every bag or packet of narcotic substance recovered in a
case and each such sample was to be separately tested by the Chemical Examiner ---Report of
Forensic Science Laboratory did not purport the necessary protocol, as such could not be
termed to be conclusive proof that the recovered substance was charas ---Prosecution had
failed to establish the safe custody of the recovered substance during trial, while not
producing mohorrir of the Levies Station ---Even safe transmission of the samples of the
recovered substance from the local Levies Station to the office of the Chemical Examiner had not been proved by the prosecution--- Prosecution case was that the narcotic substance in
the present cas e recovered from secret cavities of the vehicle, which was allegedly driven by
the accused, as such, it was incumbent upon the prosecution to establish the presence of such cavities, but no such evidence worth its name had been brought on record in that re spect ---
Recovery witness had admitted the absence of secret cavities in the body of vehicle during
the course of cross -examination ---Circumstances established that the prosecution had failed
to prove its case against the accused beyond any shadow of doubt ---Appeal against conviction
was allowed, in circumstances.
Ameer Zeb v. State PLD 2012 SC 380 and State through Regional Director ANF v.
Imam Bakhsh 2018 SCMR 2039 rel.
Khalil Ahmed Panezai, Muhammad Asif Khilji and Dost Muhammad Kakar for
Appellant.
Barrister Amir Muhammad Lehri: Amicus Curie.
Habibullah Gul, Additional Prosecutor General for the State assisted by Syed Abdul
Jabbar and Syed Abdullah, DSPs/Chemical Experts, FSL, Balochistan.
Date of hearing: 19th December, 2019.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---The appellant, Nasr -ud-Din son of
Naseer Ahmed, resident of Quetta, was booked in case Crime No.03 of 2019, registered at
Levies Station Uthal, District Lasbella on 6th March, 2019 in respect of an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 (the "Act of 1997") and after a regular trial he was convicted by the trial Court i.e. Special Judge CNS/Judge Model Criminal Trial Court (MCTC) Lasbella at Hub to suffer rigorous imprisonment for life with fine of Rs .50,000/ - (Rupees fifty thousand) and in default whereof to further undergo SI for
two months, with benefit of Section 382(b), Cr.P.C.
2. We have heard Messrs Khalil Ahmed Panezai, Muhammad Asif Khilji and Dost
Muhammad Kakar, learned counsel for the appel lant and Mr. Habibullah Gul, learned
Additional Prosecutor General, assisted by Messrs Syed Abdul Jabbar and Syed Abdullah, Deputy Superintendents of Police/ Chemical Experts, Forensic Science Laboratory,
Balochistan and also perused the available record, which reveals that the appellant Nasr- ud-
Din, while driving a Surf vehicle bearing Registration No.BF -1260, was apprehended
pursuant to spy information and as a result of search of his vehicle, 67 packets of charas, weighing 80 kilograms was recovered from its secrete cavities.
3. We have straightaway observed that the prosecution has failed to prove its case
against the appellant for a number of reasons:
i) Firstly, according to the prosecution case, Nasr- ud-Din, appellant, was apprehended at
a time when he was driving vehicle No.BF -1260 and was carrying 67 packets of
charas, weighing 80 kilograms, 1200 grams each. The FIR as well as the Memorandum of Recovery shows that a consolidated sample of 670 grams had been
separated from the 67 packets taken i nto possession in this case and no separate
sample had been secured and tested vis -a-vis the substance, contained in each packet.
The consolidated sample of 670 grams of the recovered substance was then tested
positively by the Chemical Examiner. It has be en held by the Honorable Supreme
Court in the case of "Ameer Zeb v. State" (PLD 2012 SC 380) that a sample has to be
secured from every bag or packet of narcotic substance recovered in a case and each
such sample is to be separately tested by the Chemical Examiner;
ii) Secondly, the FSL report Ex. P/3- D, does not purport the necessary protocol and it
reads as under: -
"6. Chemical Examination: Chemical examination in the respect of above suspected
material was carried out by applying following chemical test s (with complete
protocol).
Name of
chemical test
applied Chemical
reagents Suspected
material
configura -tion Colour
observa -tions
on analysis Con-clusion
1-Duquenois
Levines' Test. Vanillin
Acetaldehyde Conc,
Hydrochoric Acid Suspected
semi -solid
material Violet blue
colour Positive/
Con-firmed
II-P-Dimethyl -
adminoben-zaldehyde -P-Dimethyl -
aminoben-zaldehyde Ethanol and
Sulphuric Acid Red-violet
colour -do-
During which two gram material from each sample were consumed in the examination process. After chemical examination the remaining samples/material, along with expert opinion report in quadruplicate will be returned to concern L/S Station duly sealed.
7. Conclusion/Opinion: Chemical analysis of suspected material was conducted and finally found that, said all samples/material contained `CHARAS' Baked Cannabinoids."
The perusal of aforementioned report clearly manifests that it has been prepared in
violation of section 36 of the Act of 1997 and Rules 5 and 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001. The report does not contain the necessary protocol, as such, cannot be termed to be conclusive proof that the recovered substance was 'charas'. Though the protocol has not been defined in the Act or the Rules, yet the honorable
Supreme Court in the case of "State through Regional Director ANF v. Imam Bakhsh" (2018 SCMR 2039), defined the same in the following words: -
"15.…….."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 procedure for the evaluation of the test data. Rule 6 requires that full protocols of the test applied be part of the Report of the G overnment
Analyst."
It is worth mentioning that every test has its protocols, which are internationally
recognized and a test without the observance of its protocols has no sanctity. The perusal of record shows that the FSL authorities while determining t he status of recovered substance
have applied "Duquenois Levincs' Test" with chemical reagents "Vanillin Acetaldehyde
Conc, Hydrochlric Acid". In this connection it would be relevant to mention here that in the year 1986, on the request of Commission, a group of eleven experts and two consultants was
convened in the month of September by the Division of Narcotic Drugs in Kuala Lumpur at
the invitation of the Government of Malaysia and after detailed deliberations a manual was
published by the United Nations Division of Narcotic Drugs. For the guidance of FSL
authorities of Balochistan, it would be relevant to make a reference to the protocol of
(Duquenois -Levine's Test), which reads as under: -
"(b) The rapid Duquenois test (Duquenois -Levine test).
REAGENTS
Solution 1.
Five drops of acetaldehyde and 0.4 g of vanillin are dissolved in 20 ml of 95% ethanol.
Solution 2.
Concentrated hydro-chloric acid.
Solution 3. Chloroform.
NOTE
Solution 1 must be stored in a cool dark place and discarded if it assumes a deep yellow colour.
METHOD
Place a small amount of the suspect material in a test tube and shake with 2 ml of
solution 1 for one minute; add 2 ml of solution 2 and shake the mixture and then
allow it to stand for ten minutes: if a colour develops add 2 ml of solution 3.
RESULT
If the lower (chloroform) layer becomes violet coloured this indicates the presence of
a cannabis product."
Similarly, in cases of Opium, Morphine and Heroin, the United Nations International
Drugs Control Program, has recommended the following methods for testing: -
"REAGENT PREPARATION
Marquis Add 8- 1 0 drops of
reagent: 40% formaldehyde solution to 10 ml of concentrated sulfuric acid.
Mecke's Dissolve 0.25 gm of
reagent: selectious acid in 25 ml of concentrated sulfuric acid.
Frohde's Dissolve 50 gm of
reagent: either molybdic acid or sodium molydate in 10 ml of hot concentrated
sulfuric acid. The freshly prepared reagent should be colourless.
Dragendorff's Solution(1) - Mix
reagent: 2 gm of bismuth subnitrate, 25 ml of glacial acetic acid, and 100 ml of
water.
Solution (2) - Dissolve 40 gm of potassium iodide in 10 ml of water. Mix
10 ml of(1), 10 ml of(2), 20 ml glacial acetic acid, and 100 ml of water to
produce Dragendorff's reagent.
Acidified Dissolve 0.25 g of
potassium platonic chloride
iodoplatinate and 5 g of potassium
reagent: iodide in 100 ml of water Add 2 ml of concentrated hydrochloric acid to create the acidified version.
Ferric chloride Dissolve 1.0 gm of
solution: ferric chloride in 10 ml of water.
Silver nitrate Dissolve 0.5 gm of
solution: silver nitrate in 10 ml of water.
Barium chloride Dissolve 1.0 gm of
Solution barium chloride in 10 ml of water.
Dilute Ammonia Dilute 375 ml of
solution: concentra ted ammonia solution to 1 liter.
Congo Red Dissolve 0.01 gm of
solution: Congo Red in 10 ml of water.
iii) Thirdly, the prosecution has failed to establish the safe custody of the recovered
substance during trial, while not producing Moharrir of the Levie s Station. Even safe
transmission of the samples of the recovered substance from the local Levies Station
to the office of the Chemical Examiner had not been proved by the prosecution. As
per report Ex- P/3-A, the alleged recovered materials were handed over to the, FSL
authorities by one Naseer Ahmed Tehsildar but it is very strange to observe that said Naseer Ahmed while recording his statement as PW -3 has failed to utter a single word
in this regard. It has already been declared by the Hon'ble Supreme Court in the case
of "State through Regional Director ANF v. Imam Bakhsh", (2018 SC 2039), that in a
case where safe custody of the recovered substance is not established by the
prosecution then it cannot be held that the prosecution had succeeded in establis hing
its case against an accused person.
iv). Fourthly, it is case of the prosecution that the narcotic substance in this case was
recovered from secret cavities of the vehicle, which was allegedly driven by the
appellant as such, it was, thus, incumbent upon the prosecution to establish the
presence of such cavities, but no such evidence worth its name had been brought on
record in this respect. The recovery witness i.e. P W -2, Abdul Razzaq, has admitted
the absence of secret cavities in the body of vehicl e during the course of cross -
examination.
4. It is also worth mentioning that appellant Nasr- ud-Din is teacher of a religious
institution at Noshki and having knowledge about a number of check posts on national
highway of different law-enforcing agencies and stoppage of vehicle on the check posts for
the purpose of checking, as such, it does not appeal to a prudent mind that the appellant will drive a vehicle without license and registration papers. having contraband.
For what has been discussed hereinabove, this appeal is allowed, the conviction and
sentence of the appellant recorded by the learned trial court vide impugned judgment dated
20th September, 2019 in Case No. 72/2019 is set aside and while extending the benefit of
doubt, the appellant is acquitted of the charge under section 9(c) of the CNS Act, 1997,
arising out of FIR No. 3/2019 Levies Station Uthal District Lasbella. The appellant, being in
custody, should be released forthwith if not required in any other case.
JK/26/ 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,
let us know.