2021 P Cr (PLP)

SALAHUDDIN PANHWAR, J.

This appeal is directed against the judgment dated 08th March 2019, passed by learned IIIrd Additional Sessions Judge/Special Judge under Control of Narcotic Substances Act, Hyderabad in Special Case No.132 of 2016, arisen out of Crime No.128 of 2016, registered at Police Station Phuleli, Hyderabad, under section 9(c), Control of Narcotic Substances Act, 1997, whereby the appellant Nisar Ahmed Shah has been convicted under section 9(c) of CNS Act, 1997 and sentenced to undergo RI for 04 years and 06 months and to pay the fine of Rs.20,000/-. In case of default in payment of fine he was ordered to suffer SI for one month more. Benefit of section 382-B, Cr.P.C. was also extended to the accused.

2. Brief facts of the prosecution case are that on 30.10.2016 at about 1945 hours, a police party of Police Station Phuleli, Hyderabad headed by SIP Ameer Bux, arrested the above named accused from Railway Line Islamabad Pathak, Hyderabad and from the possession of accused, complainant recovered 1100 grams chars in shape of two big and one small pieces in presence of the police mashirs. Thereafter, property was sealed at the spot and such memo of arrest and recovery was prepared. Then accused and case property were brought at police station where FIR was lodged by the complainant on behalf of State under section 9(c), CNS Act.

3. During investigation, Investigating Officer recorded 161, Cr.P.C. statements of the PWs. Recovered substance was sent to the chemical examiner, wherefrom positive chemical report of the said contraband / sample as that of Charas was received. On the conclusion of investigation challan was submitted against the accused for offence under section 9(c) of CNS Act, 1997.

4. Trial Court framed charge against accused at Ex.2 under section 9(c) of CNS Act, 1997, to which, accused pleaded not guilty and claimed to be tried. At the trial prosecution examined PW-1 SIP Ameer Bux at Ex.3, he is the investigating officer and complainant of this case. He produced memo of arrest and recovery, FIR, departure and arrival entries, letter to chemical analyzer and chemical analyzer report at Ex.3/ A to 3/F respectively. PW-2 Ghulam Muhammad at Ex.4, he is first mashir of the case and then the prosecution side was closed at Ex.5.

5. Statement of accused was recorded under section 342, Cr.P.C. at Ex.6. Accused denying prosecution allegations claimed his false implication in this case. However, neither he examined himself on Oath nor produced any evidence in his defence.

6. We have carefully heard Mr. Ashok Kumar, learned advocate for appellant, Mr. Abdul Waheed Bijarani, A.P.G. for the State and scanned the entire evidence available on record.

7. Mr. Ashok Kumar, learned advocate for appellant has mainly contended that prosecution case is highly doubtful; that despite the fact that place of incident was located at busy spot, yet, none from public was joined as mashir to attest the arrest and recovery; that in this case complainant himself has investigated the matter and made his subordinate as mashir; that there are material contradictions in prosecution evidence, hence it cannot be relied upon; that the prosecution has failed to examine the witness through whom the property was sent to the Chemical Analyser as such the safe custody of property has become doubtful; that there is delay in sending the parcel to chemical examiner hence tampering with the case property during such period could not be ruled out. Lastly, he argued that accused has been involved in this case falsely. In support of his contentions, learned counsel for the appellant relied upon the cases of Ikramullah and others v. The State (2015 SCMR 1002) and Tariq Pervez v. State (1995 SCMR 1345).

8. On the other hand, Mr. Abdul Waheed Bijarani, learned A.P.G. opposed the contentions raised by learned counsel for the appellant however, he could not controvert that there is delay in sending the parcel to Chemical Examiner.

9. At the outset, we can safely say that such like cases could only be justifiable if the status of the recovered articles is shown to be 'contraband articles'. It is not the recovery of some articles which makes him liable for prosecution under the 'Act' but possession of those articles only which have been detailed in the 'Act' as 'narcotics'. Thus, a positive and legal 'chemical report' is a 'must' for trial of one for such 'charge'. It may well be said that determination of status of 'narcotics' is never dependent upon words/claims of police officer but always requires certification by an expert. Needless to add that a positive and legal report alone would only make the charge justifiable but shall never be sufficient to record conviction because it only proves status of recovered articles and can never point out the person from whose possession or from where it was recovered. These shall always require proof from prosecution in the manner as required by law itself.

10. The legislatures did recognize such fact so while framing Control of Narcotic Substances (Government Analysis) Rules, 2001 it was insisted that such report shall indicate complete protocol thereby detailing the tests, applied to determine the sample, so received for chemical analysis. We may add here that since report could only determine status of sample hence burden to establish safe custody from time of its recovery till receipt thereof in office of Chemical Analyzer shall be on prosecution. The relevant rules first came into discussion in the case of Ikramullah v. State 2015 SCMR 1002 and it was observed as:- 4. .......According to Rules 5 and 6 of the Control of Narcotic Substances (Government Analysis) 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 referring 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 had concluded that the samples sent to him for examination contained charas.....A bare book at the report submitted by the Chemical Examiner in the present case shows 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 not 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 substance is sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in the "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 report 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.... It is not disputed that the investigating officer 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 Court 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 recovered 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. (underlining is for emphasis) In above, it was categorically held that if the report is not so prepared, as required by law, then it would not qualify as 'conclusive proof' of recovered articles as narcotics. It may safely be added here that in absence of a conclusive proof of status of articles, claimed as narcotics, it would never be safe to record conviction. In another case of State v. Imam Bakhsh 2018 SCMR 2039, the honourable apex Court while dealing with similar question, decided number of matters while holding as:

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, will 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 Laboratory.

21. In all the above appeals we have observed that there has been bon-compliance of Rule 6 to the extent of absence of the full protocols of the tests applied. Additionally, in Criminal Appeals Nos.523-525 of 2017 and No.22 of 2018, safe custody and safe transmission of the seized drugs had also not been established.

22. For the above reasons, the main Appeals Nos.523, 494, 452 of 2017 and Nos.22 and 51 of 2018, against acquittal are dismissed. As a consequence Criminal Appeal No. 525 of 2017 and Petition No. 91-Q/2017 for forfeiture of property are also dismissed. In most recent case of Khair-ul-Bashar v. State (2019 SCMR 930), the honourable Apex Court responded to plea, so raised with reference to case of Imam Bakhsh, as under:- "6. .... Regarding the objection that Imam Bakhsh may overturn hundreds of convictions, it is pointed out that the sole purpose of this Court is to dispense justice in accordance with law and it matters less if one or many convictions are overturned because of the correct interpretation and application of the law. Imam Bakhsh purposively interprets the Act and finds Rule 6 to be a mandatory provision regarding information to be reflected in the Report of the Analysis. Hence, the argument that Imam Bakhsh is per incuriam, is hopelessly misconceived and rejected. For completion of record it is pointed out the review filed in Imam Bakhsh was dismissed vide an earlier order dated 06.02.2019."

11. The above principles, so enunciated by honourable apex Court, are sufficient to safely conclude that a defective report couple would alone be sufficient to record an acquittal and if there is also a failure of prosecution in establishing safe transmit of sample then other merits of the case would be of no significance for prosecution to insist conviction. Proving of these two alone, however; would not be sufficient for conviction unless manner of recovery thereof is proved least initial burden is so discharged.

12. Further, in the instant chemical examiner 's report, seal parcel number column is vacant as well in column of letter number crime number is shown, date is not available. Besides, recovery was effected on 30.10.2016 and same was sent with delay of one day on 31.10.2016 and received on 01.11.2016. Per available record, the prosecution has not succeeded in establishing safe transmit after one day by detailing safe custody thereof during such period. Besides, HC Nizar Ali who was assigned to hand over the property for chemical report at the laboratory was not examined.

13. Though legally the defective chemical report couple with failure to establish safe transmit of sample/property is sufficient to record acquittal, however, the record also shows that prosecution case is that they arrested the accused during checking of vehicles at Islamabad Railway Crossing but no independent person of the locality was associated to act as mashir nor they attempted for the same though the place of incident is a thickly populated area hence constructive possession is lacking in this case. Needless to mention that in every criminal case prosecution is duty bound to establish its case beyond shadow of any reasonable doubt and a single dent in the prosecution case entitles the accused for acquittal. Here safe custody is questionable and mandatory provision is not followed as well case is not free from doubt hence the instant appeal was allowed by our short order dated 24.07.2019 and these are the reasons whereof. SA/N-49/Sindh Appeal allowed.