Ghulam Hussain V. The State,

2023 Y L R 737 [Balochistan (Sibi Bench)] Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ GHULAM HUSSAIN ---Appellant Versus The STATE--- Respondent Criminal Appeal No.(s) 53 of 2022, decided on 11th August, 2022. (a) Control of Narcotic Substances Act (XXV of 1997)--- ----S. 9(c) --- Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4--- Transportation of narcotics ---Dispatch of sample for test or analysis ---Appreciation of evidence--- Benefit of doubt ---Safe custody ---Cont radictory statements ---Scope ---Accused was alleged to have been intercepted while transporting 28 kilograms of charas --- Prosecution's evidence was silent as to the fact that who had taken the representative sample to the analyst ---Investigating Officer had not produced the register of the Malkhana and no evidence was produced to prove safe transmission of the contraband from the police to the Chemical Examiner ---Prosecution case was full of contradictions ---Samples taken from each packet was in negligible q uantity (01 gram) ---Sealing of 28 samples in one parcel was not safe for conviction of the accused ---Samples were not separated on the spot of recovery --- Recovery from the impounded car was also doubtful ---Prosecution had failed to bring home the charge ag ainst the accused beyond reasonable shadow of doubt ---Trial Court had failed to properly appreciate the evidence and the law ---Appeal was allowed and the accused was acquitted of the charge, in circumstances. (b) Control of Narcotic Substances Act (XXV of 1997) --- ----S. 36--- Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4--- Reports of Government Analysts ---Dispatch of sample for test or analysis --- Expression "reasonable quantity" ---Scope ---Section 36 of Control of Narcotic Substan ces Act, 1997, does not specify any particular quantity of recovered substance to be sent as a sample, however, the Rule 4(1) of Control of Narcotic Substances (Government Analysts) Rules, 2001, directs that reasonable quantity of sample from the recovered contraband/ substances seized shall be drawn on the spot of recovery and dispatched to the officer in charge of nearest Narcotic Testing Laboratory ---Only one gram (negligible quantity) cannot be termed a "reasonable quantity" for the purpose of chemical analysis. (c) Control of Narcotic Substances Act (XXV of 1997) --- ----S. 9 ---Possession of narcotics ---Safe custody ---Scope ---If safe custody of narcotics and its transmission through safe mode is not established, the same cannot be used against the accus ed. Mst. Razia Sultana v. The State and another 2019 SCMR 1300 and The State through Regional Director, ANF v. Imam Bakhsh and others 2018 SCMR 2039 ref. Adnan Ejaz Sheikh for Appellant. Abdul Mateen, Deputy Prosecutor General for the State. Date o f hearing: 4th August, 2022. JUDGMENT GUL HASSAN TAREEN J. ---This Criminal Appeal under section 48, the Control of Narcotic Substances Act, 1997 ("CNSA, 1997") is directed from the judgment dated 21st April, 2022 ("impugned judgment") passed by the Special Judge CNS/ Sessions Judge, Kohlu ("trial Court"), in FIR No. 36/ 2021, dated 26th December, 2021, under section 9 (c) of the CNSA, 1997, P. S Jivani, Kohlu, whereby on convicti on, the appellant has been sentenced to suffer imprisonment for life; also sentenced to pay fine of Rs. 200,000/ - (Rupees two hundred thousands) and in default, to serve three moths S. I., benefit of section 382- B, the Criminal Procedure Code, 1898 ("Cr.P. C.") has been extended to the convict/ appellant.

2. Precise facts leadings to the present case are that on 26th December, 2021 at 01:00 p.m., complainant Wazir Khan Dafedar, upon spy information of trafficking narcotic, laid picket along with other police contingent at Gree Cross; in the meanwhile at about 05:30, a blue colour 2- D car bearing Registration No. LW -8484 being driven by the appellant coming from Sibi was intercepted. The driver disclosed his name Ghulam Hussain son of Ali. During the course of search of the car, 28 packets Charas, total weighing 28 kilograms recovered from secret cavities. The complainant segregated 01/01 gram from each packet as sample for chemical analysis, packed and sealed the same in Parcel No. 1, while the remaining contr aband 27972 grams was packed and sealed in another Parcel No. 2 and took both the parcels vide Recovery Memo. (Ex: P/2 -A), whereafter murasila (Ex: P/1 -A) was sent to the police station through Constable Muhammad Jan for lodgment of FIR. And instant case w as registered vide FIR (Ex: P/3 -A).

3. After completion of investigation, complete challan was submitted before the trial Court. After framing of the Charge, the prosecution in order to bring home the accusation against the appellant, examined three witnes ses. On close of prosecution evidence, statement of appellant under section 342, Cr.P.C was recorded wherein he denied the accusation and posed innocence, however, he did not opt to be examined on oath or to produce defence evidence. After termination of trial, the trial Court convicted and sentenced the appellant through impugned judgment.

4. We have heard Mr. Adnan Ejaz Sheikh, learned counsel for the appellant and Mr. Abdul Mateen Khosa, D.P.G and gone through the record with their able assistance.

5. The main crux of the arguments of the appellant's counsel relates to safe custody and transmission of parcel containing the alleged recovered narcotic. In his cross -examination, the Investigating Officer stated that; "the representative sample was in his cu stody for two days." He also stated that; "the representative sample was sent to Quetta on 28th for analysis." The analyst report (Ex: P/3- C) states that the sealed parcel was received on 30th December, 2021. The prosecution's evidence is silent as to the fact that who had taken the representative sample to the analyst. The Investigating Officer had not produced the register of the Malkhana and no evidence was produced to prove safe transmission of the contraband from the police to the chemical examiner. Th e chain of custody and safe transmission stand compromised. The law in this regard is settled by now that if safe custody of narcotics and its transmission through safe mode is not established, the same cannot be used against the accused. We may place reli ance on the cases of Mst. Razia Sultana v. The State and another reported in 2019 SCMR 1300 and The State through Regional Director, ANF v. Imam Bakhsh and others, reported in 2018 SCMR 2039.

6. The prosecution case is not only full of contradictions but i s also based upon surmises. The complainant, PW -1 in his examination in chief stated that that they recovered 28 kilograms of Charas from the secret cavities of the impounded car; they took the car along with the recovered Charas to Levies Station Jivani a nd segregated from each packet. He handed over the accused, recovered Charas and the car to the Investigating Officer. Whereas the PW- 2 stated that they recovered the contraband from the switch board of the car; at 06:30, the Investigating Officer came at site and had taken custody of the accused, car and the contraband. In his cross -examination he stated; "37. The Investigating Officer had recorded statement at the site and took custody of contraband and car from the site. The examination in chief of PW -1 also reflects that he seized the recovered contraband, separated the representative sample and prepared the parcels and wrote the murasila in the Levies Thana Jiwani. These cleared and naked contradictions in the prosecution evidence make the prosecution case highly doubtful and created serious doubts.

7. The prosecution had to, take reasonable quantity of samples from each packet for the purpose of chemical analysis and prepare 28 parcels for chemical analysis. The following contents of the FIR are relevant: Though section 36 of the CNSA, 1997 does not specify any particular quantity of recovered substance to be sent as a sample, however, the rule R 3(1) of the Control of Narcotic Substances (Government Analysts) Rule, 2002 directs that reasonable quantity of sample from the recovered contraband/substances seized, shall be drawn on the spot of recovery and dispatched to the Officer -in-Charge of nearest Narcotic Testing Laboratory--- (emphasis supplied). The only one (01) gram (negligible quantity) cannot be termed a "reasonable quantity" for the purpose of chemical analysis. Even, the samples were not separated on the spot of recovery (Gree Cross). The separated samples were sealed in one parcel.

8. We are of the firm view that evidence produced by the pros ecution has not established safe custody of narcotic and safe transmission of the sample from the police to the chemical examiner. The sample allegedly taken from each packet is negligible quantity and sealing of 28 samples in one parcel is not safe for co nviction of the appellant. The recovery from the impounded car is also doubtful. In our considered opinion, prosecution has failed to bring home the charge against the appellant beyond reasonable shadow of doubt. The trial court has failed to properly appr eciate the evidence and the law. Resultantly, the appeal is allowed. The impugned judgment is set aside. The appellant Ghulam Hussain son of Ali is acquitted of the charge, in case FIR No. 36/2021, under section 9(c) of CNSA, 1997, Levies Station Jiwani. He is ordered to be released fort hwith if not required to be detained in any other case. SA/173/Bal. Appeal allowed.