Possession of narcotics

Accused/appellant was convicted for the offence under S.9(c) Control of Narcotic Substances Act, 1997 and was sentenced to four years

Provisions of S.426, Cr.P.C do not grant an absolute right to bail upon conviction but rather require the demonstration of exceptional circumstances warranting the suspension of the sentence

Appellant had failed to establish any compelling reasons that would justify interference at this stage

Offence under S.9(c) falls within the ambit of special law, which is to be interpreted and applied in accordance with the legislative intent rather than in light of general criminal jurisprudence

Provisions governing narcotics offences underscore the gravity of such crimes and necessitate a strict application of sentencing laws to serve as a deterrent

In the present case, the appeal of the appellant was filed on 10.01.2024, and there was no evidence to suggest any unreasonable delay in its adjudication

Since the statutory requirement of prolonged pendency had not been met, the appellant was not entitled to be released on bail under the provision of Section 426, Cr.P.C

Applicant had failed to point out any illegality in the impugned judgment, thus, the same was dismissed.

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 sample taken from the recovered substance had safely been transmitted to the office of laboratory without being tampered with or replaced while in transit

Moreover, the Forensic Science Laboratory Report relied upon by the prosecution also did not contain the full details of protocols of the test applied, which being unreliable could not be made a basis to sustain conviction and sentence of the accused persons

"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 procedures for the evaluation of the test data

Rule 6 required that full protocols of the test applied be part of the 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 Government Analyst through the course of conducting a test

Hence, the Report under R.6 must specify every test applied for the determination of the seized substances with the full protocols adopted to conduct such tests and non-compliance of R.6 could frustrate the purpose and object of the Act, i.e., control of production, processing and trafficking of narcotic drugs and psychotropic substances, as conviction could not be sustained on a Report that was inconclusive or unreliable

Evidentiary assumption attached to a Report of the Government Analyst under S.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-Il) failing to-give details of full protocols of the test applied would be inconclusive, unreliable, suspicious and untrustworthy and would not meet the evidentiary assumption attached to a Report of the Government Analyst under S.36(2)

Circumstances established that the prosecution had not been able to prove its case beyond reasonable doubts

Appeal against conviction was allowed, in circumstances.

Complainant stated in his cross-examination that while patrolling, they checked some vehicles and thereafter proceeded to place of incident, while mashir/Police Constable contradicted such point by stating that they patrolled through highway and he did not mention anything about checking of vehicles in between

Complainant stated in his FIR and examination-in-chief that accused on seeing police party tried to escape but in his cross-examination he himself contradicted by stating that accused did not escape and they apprehended him

Mashir also stated in his examination-in-chief that accused tried to escape but he contradicted the same during his cross-examination by stating that accused did not escape

Complainant claimed during cross-examination that he himself conducted personal search of accused while he was in custody of mashir which was contradicted by mashir by stating in his cross-examination that accused was in custody of other Police Constable at that time

Complainant claimed in his cross-examination that he had looked around but no person was there at that time to act as mashir which was contradicted by (police) mashir who stated that at that time people were passing through the road but nobody was willing to act as mashir

Complainant stated in his cross-examination that he prepared memo. of arrest and recovery himself which was too was contradicted by mashir in his cross-examination by stating that other Police Constable had written memo. of arrest and recovery on the dictation of complainant

Investigating Officer stated in his examination-in-chief that due to non-availability of private persons he associated police mashirs during inspection of place of occurrence which was contradicted by complainant and mashir who stated that he did not pick any person to act as mashir, though admittedly place of occurrence was a public road and there were houses and poultry farm located near place of occurrence yet he did not make any effort to arrange private persons to act as mashir

Said contradictions in the evidence of prosecution witnesses indicated that the complainant and mashir were not the true eye-witnesses of the incident and no such incident of the arrest of the accused and recovery of hemp from him had occurred as alleged by the prosecution

Appeal against conviction was allowed, in circumstances.

Nowhere he had deposed that either he deposited charas with the Incharge of Malkhana or handed it over to the Investigating Officer of the case

Police Constable/mashir had also neither deposed that charas was deposited with the Incharge of Malkhana nor it was handed over to the Investigating Officer

However, Investigating Officer deposed that charas was deposited in the Malkhana

Record reflected that alleged recovery was effected on 11.10.2022, whereas sample parcels were received in the office of Chemical Examiner on 12.10.2022 without any plausible explanation as to where they remained from 11.10.2022 to 12.10.2022

Prosecution had failed to establish safe custody and safe transmission of the sealed sample parcels to the Chemical Examiner as Moharrar, who kept the sample parcel in the Malkhana and Police Constable, who delivered the sample parcel to the office of Forensic Science Laboratory, were not produced by the prosecution

Chain of safe custody and safe transmission of narcotics must be safe and secure because, the Report of Chemical Examiner enjoys very critical and pivotal importance under the Act, 1997 and the chain of custody ensures that correct representative samples reached the office of the Chemical Examiner

Any break or gap in the chain of custody i.e. in the safe custody or safe transmission of the narcotic or its representative samples made the report of the Chemical Examiner unsafe to justify conviction of the accused

Prosecution, therefore, has to establish that the chain of custody remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner

However, the facts of the present case revealed that the chain of custody had been compromised, therefore, reliance could not be placed on the report of the Chemical Examinerto support conviction of the appellant

Appeal against conviction was allowed, in circumstances.

Record showed that Trial Court had committed illegality while recording examination-in-chief of a witness in absence of defence counsel, amounting to denial of a fair trial

Another illegality committed by the Trial Court was regarding examination-in-chief of another witness and his cross-examination on the same day by newly appointed defence counsel without preparation and instructions for the offence under S. 9(c) of Control of Narcotic Substances Act, 1997, which was punishable with death or imprisonment for life

Fair opportunity should have been provided by the Trial Court for conducting the trial

Right to fair trial is a fundamental and Constitutional right belonging to every citizen

While deciding a criminal lis, the recording of evidence including the right of cross-examination of the witnesses, hearing of arguments and a reasoned judgment were essential attributes of criminal justice system based on the Constitutional command

Illegalities committed by the Trial Court in the present case were not curable under the law

Appeal was allowed by setting aside conviction and sentence and case was remanded to the Trial Court for recording evidence of witnesses afresh in the presence of defence counsel.

Counsel for the petitioner (accused) contended that it was surprising that in the month of May at 6 pm during daylight hours at a popular public park, the only witnesses were policemen, none of whom made a video recording, nor took any photographs of the seizure and arrest

Validity

Facts and circumstances of the instant case made it a case of further inquiry

Petition for leave to appeal was converted into appeal and allowed and accused was granted bail.

Prosecution case was that 20 kilograms charas was recovered from the secret cavities of the vehicle driven by the accused

Seizing Officer as well as recovery witness had failed to mention about arrival of Investigating Officer, in respect of handing over the recovered charas to him or otherwise, which put dent into the safe custody and handing over the narcotics from the place of occurrence to the Malkhana

Head Constable/witness stated that on 19.12.2020 Investigating Officer came to his office and handed over parcels pertaining to samples as well as parcels pertaining to remaining charas, whereof he made entry in Register No.19 and deposited the same in Malkhana for its safe custody

Surprisingly, said witness did not mention in his statement that when and to whom he handed over the samples of narcotics for onward transmission to the Narcotics Testing Laboratory for chemical analysis

Similarly, Investigating Officer though stated to have handed over the said parcels of narcotics pertaining to samples and remaining parcels of narcotics to the Malkhana in-charge on the fateful night but did not mention as to when, how and in which manner he received back the parcels from Malkhana in-charge for onward transmission to the laboratory in his examination-in-chief, which created doubt in the safe custody and transmission of the narcotics and its samples

Circumstances established that the prosecution had failed to prove the safe custody and transmission of the contraband from the place of recovery to the Malkhana and then to the laboratory

Appeal was accordingly allowed.

Prose-cution case was that 20 kilograms charas was recovered from the secret cavities of the vehicle driven by the accused

Recovery witness testified in line with the testimony of Seizing Officer and deposed that 20 kgs of charas were recovered from the cavities of the car, which were taken into possession

Said witness did not state in his examination-in-chief that where and in which manner the narcotics were concealed in the cavities

Prosecution during trial neither showed the cavities made in the car to the trial Judge nor to the adversarial parties to see and examine as to how the charas was concealed in the cavities, which made the recovery doubtful

Circumstances established that the prosecution had failed to prove the recovery

Appeal was accordingly allowed.

Record revealed that the appellant was a first offender without a previous criminal history , which aspect is considered as a mitigating circumstance while deciding question of sentence because an accused is entitled to the benefit of any available mitigating circumstances

High Court, while maintaining conviction of the appellant, converted his sentence of death into imprisonment for life

Appeal was dismissed with said modification in sentence.

Evidence of prosecution revealed that the chain of safe custody and transmission of contraband began with seizure of contraband by the Investigating Officer and was followed by the separation of representative samples of the seized contraband and safe custody of representative samples of contraband with the police and dispatch of the same to the Chemical Examiner for examination and testing

Link of said chain was not missing in the present case

Safe custody and transmission of contraband and its samples had been proved by the prosecution

Appeal was dismissed with modification in sentence.

Police employees are competent witnesses like any other independent witness and their testimony can not be discarded merely on the ground that they were police employees.

Prosecution case was that from the accused persons 2 kgs heroine and 25 kgs opium were recovered having been concealed in the cavities made in the dashboard of the car

Statement of Prosecution Witness (PW), constable, on the basis of whose report the FIR was registered, revealed that though he reiterated and remained firm to what he had recorded in the crime report, however, he did not mention about calling PW/Investigating Officer ('I.O') at the check post, but, while testifying before the Trial Court, he improvised his statement while stating that he informed him(I.O) whereafter he came to the check post and to whom he presented Murasila, whereas I.O/PW stated that while he was present in Levies Station Murasila was received by him, whereupon he registered the FIR and then went to the Check Post

Complainant and I.O both as PWs belied and contradicted each other on the receipt of Murasila and arrival at the crime scene, besides the fact that in the report and FIR nothing as stated was recorded

Prosecution had failed to prove the indictment and the reasoning assigned by the Trial Court was based on misreading of evidence as well as improper appraisal of evidence

Thus, High Court set aside the impugned judgment passed by the Trial Court and acquitted both the appellants from the charge, extending them the premium of benefit of doubt

Appeals against conviction were allowed, in circumstances.

Prosecution case was that from the accused persons 2 kgs heroine and 25 kgs opium were recovered having been concealed in the cavities made in the dashboard of the car

Record revealed that the prosecution failed to produce the unassembled dashboard, showing the cavities, wherein the narcotics were concealed

Recovery witness (PW) also did not mention in his statement that as to how and by whom the dashboard was unassembled on the spot with further failure by the prosecution to produce the unassembled dashboard in the court for exhibiting

Neither statement of said witness nor the impugned judgment, depicted that the car was physically examined by the defence or state counsel or by the Trial Court

Thus, statements of the prosecution witnesses were not confidence inspiring and untrustworthy

Prosecution had failed to prove the indictment and the reasoning assigned by the Trial Court was based on misreading of evidence as well as improper appraisal of evidence

Thus, High Court set aside the impugned judgment passed by the Trial Court and acquitted both the appellants from the charge, extending them the premium of benefit of doubt

Appeals against conviction were allowed, in circumstances.

Prosecution case was that from the accused persons 2 kgs heroine and 25 kgs opium were recovered having been concealed in the cavities made in the dashboard of the car

Investigation Officer (I.O) as a Prosecution Witness (PW) in his examination-in-chief did not mention a word regarding the parcels of heroine and opium, including samples given to the In-charge Malkhana (PW) and receiving back from him and handing over to constable (PW) for onward transmission for chemical analysis to Forensic Science Lab

Prosecution had failed to prove the safe custody and transmission of samples

Protocols provided under section 36 of the Control of Narcotic Substances Act, 1997 and Rr. 5 & 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, had not been complied with

Prosecution had failed to prove the indictment and the reasoning assigned by the Trial Court was based on misreading of evidence as well as improper appraisal of evidence

Thus, High Court set aside the impugned judgment passed by the Trial Court and acquitted both the appellants of the charge, extending them the premium of benefit of doubt

Appeals against conviction were allowed, in circumstances.

Prosecution case was that from the accused persons 2 kgs heroine and 25 kgs opium were recovered having been concealed in the cavities made in the dashboard of the car

One accused was found to be sitting alongside the driver; however, the prosecution failed to establish that he had any knowledge about the narcotics having been concealed in the secret cavities of the dashboard

Prosecution had failed to prove the indictment and the reasoning assigned by the Trial Court was based on misreading of evidence as well as improper appraisal of evidence

Thus, High Court set aside the impugned judgment passed by the Trial Court and acquitted both the appellants of the charge, extending them the premium of benefit of doubt

Appeals against conviction were allowed, in circumstances.

Prosecution case was that ten kilograms charas and 800 grams opium were recovered from the secret cavities of the vehicle driven by accused

Record showed that the Malkhana Incharge had not been produced to corroborate the testimony of the Investigating Officer, regarding handing over the parcels to him

In absence of the deposition of the Malkhana Incharge with whom allegedly the parcels were deposited, the safe custody and transmission of the contraband would remain unsubstantiated, creating doubt in the case of the prosecution

Although Police Constable was produced by the prosecution, who deposed that on 11.10.2020, he took parcel Nos. 1 and 2 at 11:00 p.m. and deposited the same on 12.10.2020 at 10:00 a.m. in the Laboratory and went to another city on 18.10.2020 and brought back the Forensic Science Laboratory Report along with parcels on 19.10.2020, but he did not state that from whom he received the parcels and in return, to whom he handed back the same, which made custody and transmission of the recovered narcotics highly doubtful

Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of doubt

Appeal against conviction was allowed accordingly.

Prosecution case was that ten kilograms charas and 800 grams opium were recovered from the secret cavities of the vehicle driven by accused

Complainant, during his cross-examination, gave the details of the recovery from each door and making of the parcels, however did not utter a single word in his examination-in-chief about extraction of any sample, arrival of the Investigating Officer and handing over of parcels to him

Police Constable/recovery witness reiterated what Seizing Officer had stated

Charas was found to be in nine pieces, but the Seizing Officer had not mentioned a word that the charas was recovered in pieces

During production and exhibition of the parcels before the Trial Court, the charas and opium were found in one parcel, having the seal of police station thereon, which was again a surprise as according to the Seizing Officer, two parcels were prepared separately

Recovery witness also did not mention about arrival of the Investigating Officer at the place of recovery nor did he state that the narcotics and car were handed over to him

Statement of both the witnesses with regard to recovery of the contraband and preparation of the parcels had made the recovery doubtful

Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of doubt

Appeal against conviction was allowed accordingly.

Thus, there is no bar on an Investigating Officer to send the samples for analysis beyond 72 hours of the seizure because the language of R. 4(2) is directory

Non compliance of Rule 4(2), would not render search, seizure and arrest of an accused as absolute nullity and make the entire prosecution case doubtful.

In order to prove safe custody of the seized charas, the prosecution produced In-charge Store Room, who deposed that on 6th July, 2022, the Investigating Officer handed over to him the parcels of the instant case and he placed them in the store room

Said witness incorporated receipt of parcels in his register at serial No. 1205; however, the witness had not produced store room register or copy thereof during his examination in chief before the Trial Court

Investigating Officer had not taken into possession the copy of said store room register

Through the In-charge Store Room the prosecution had failed to establish the safe custody of the alleged recovered charas

Hence the chain of safe custody had been compromised by the prosecution,which created a reasonable doubt in the prosecution case

Appeal against conviction was allowed, in circumstances.

Prosecution case was that 15-kilograms charas was recovered from the secret cavities of the vehicle driven by the accused

Prosecution had proved the chain of safe transmission of the samples from the spot to the Forensic Science Laboratory through the testimony of three witnesses comprising Seizing Officer, Head Constable/Moharrir and another Moharrir

Said witnesses had also been cross-examined by the defence but nothing of the sort could be extracted from them so as to make the transmission of the samples from the spot to the Forensic Science Laboratory as doubtful or that during the period of its transmission the same were interfered with or tampered

No doubt, witnesses were Police Officials but they were competent witnesses like any other independent witness and their testimony could not be discarded merely on the ground that they were police employees unless and until any ill will or enmity with the accusedwas proved against them

Nothing in black and white was available on file or even otherwise suggested by the defence in their cross-examination that witnesses had any ill will or enmity with the accused

Appeal against conviction was dismissed, in circumstances.

Control of Narcotic Substances Act, 1997 ("Act of 1997"), was promulgated in the year 1997 and made applicable and extendable throughout Pakistan

Subsequently, in year 2019 the Government of Khyber Pakhtunkhwa enacted and promulgated the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 ("Act of 2019"), vide notification dated 4th September, 2019, and the same was made applicable and extendable to the Province of the Khyber Pakhtunkhwa

Though under S.59, of the 2019 Act, the Act of 1997 had been repealed but only to the extent of cultivation, possession, selling, purchasing, delivery and transportation etc within the Province of Khyber Pakhtunkhwa

Section 59 (ibid) did not specifically provide about repealing of rest of the provisions of the Act of 1997

Sections 21 & 23 of the Act of 1997 are similar to a great extent with Ss. 28 & 30 of the Act of 2019, as both speak about the power of entry, search, seizure and arrest of accused without warrant and power to stop and search conveyance by an Authorized Officer

As per S.2(e) of the Act, 2019 an Authorized Officer means an Officer of the Directorate General, not below the rank of Sub-Inspector, authorized by the Director; or a Police Officer/Official not below the rank of Sub-Inspector, authorized by the Regional Police Officer, or an Officer or Official of the ANF, not below the rank of Sub-Inspector, authorized by the Regional Director

However, arrest of accused in possession of narcotics by a Police Officer below the rank of Sub-Inspector would not vitiate the prosecution case, rather the competent Court would proceed to determine the guilt or innocence of the accused on the basis of evidence, irrespective of the manner in which he was brought before the Court.

Prosecution case was that 15-kilograms charas was recovered from the secret cavities of the vehicle driven by the accused

Record depicted that Seizing Officer of the case and Police Constable, and marginal witness to recovery memo, had furnished ocular account of the occurrence

Both had furnished the story of the arrest of the accused from vehicle and recovery of huge quantity of charas in 15 packets from secret cavities of the vehicle being driven by the accused at the relevant time

Said witnesses also exhibited the recovered contraband narcotics and vehicle before the trial Court

Despite lengthy and taxing cross-examination nothing beneficial had been extracted from their mouths

Said witnesses stuck to their stance and corroborated each other on all material aspects of the occurrence such as the day, date, time and place of arrest of the accused and recovery of narcotics from secret cavities of the vehicle being driven by the accused at the relevant time as well as the proceedings conducted at the spot

Testimony of said witnesses was further supplemented by positive Forensic Science Laboratory Report

Appeal against conviction was dismissed, in circumstances .

Prosecution case was that two packets of heroine, weighing 1000 grams each, (total 2000 grams) were recovered from the motorcar of the accused

Complainant of the case reiterated the same facts, which he had mentioned in the murasila

Said witness in the murasila as well as in his Court statement stated that he handed over the case property, murasila and motorcar to recovery witnesses for taking the same to Police Station, drafted application to the Forensic Science Laboratory and on his pointation, the Investigating Officer prepared the site plan

Recovery witness/ Police Constable deposed that complainant took into possession the contraband along with motorcar in question through recovery memo, which correctly bore his signature and that of other recovery witness

Said witness stated that complainant drafted murasilaand handed over the case property, murasila and motorcar to him and other recovery witness for taking the same to police station, which they took to the Police Station and handed over murasila and accused to Sub-Inspector (S.I.) and the case property to Moharrir

Moharrir deposed that on 14.05.2022, the recovery witness brought case property, murasila and motorcar to Police Station; that he received case property and kept the same in Malkhana and parked the vehicle in premises of Police Station and in that regard he made entry in Register No.19 while the contents of murasila were incorporated into F.I.R by other SI

Moharrir/ASI deposed that on 17.05.2022 he handed over case property of the instant case i.e. parcels Nos. 1 and 2 along with route certificate to a Duty Foot Constable (DFC) for taking the same to Forensic Science Laboratory

Accordingly he took the parcels to the Forensic Science Laboratory and brought back the route certificate, which he placed on Register No.21

Said DFC deposed that on 17.05.2022 he was handed over the case property of this case i.e. parcels Nos.1 and 2 along with route certificate by Muharrir for taking the same to the Forensic Science Laboratory and accordingly he took the same and delivered it at the Forensic Science Laboratory to the concerned official and brought back the route certificate and handed it over to Muharrir

All the witnesses had been subjected to lengthy cross-examination, but nothing destructive to prosecution case and helpful to accused had been elicited from their mouth

Safe custody/transmission of contraband from the spot to the Police Station and thereafter to the Forensic Science Laboratory had been established

However, by looking into the circumstances of the case there was nothing on record to show previous involvement of the accused in such like offences, hence the sentence of life imprisonment was reduced to four years imprisonment

Appeal was dismissed with such modification in sentence.

Prosecution also proved the safe custody and safe transmission of the contraband charas as it produced both the Police Officials who received it for safe custody and entered it in the relevant Register in the police station and the one who took it to the Forensic Science Laboratory

No delay occurred in sending the contraband charas for chemical examination

Chemical report was positive which noted that necessary protocols were followed in the process

Recovery having been proved, so the burden shifted to the accused that he was innocent

Although, the accused strived to toss the plea of altercation with the Police Officials, he badly failed to substantiate it either by his evidence or even by avowing in his statement recorded under S. 342, Cr.P.C

Circumstances established that the prosecution had proved the charge beyond any reasonable shadow of doubt

Appeal was accordingly dismissed.

These were not material contradictions as the star witnesses of the prosecution, the complainant/Seizing Officer, the marginal witness of the recovery memo and the Investigating Officer were not successfully challenged in cross-examination

No cross-examination was made to the effect that the occurrence didn't take place on the site mentioned in the murasila, rather, the site plan was confirmed from them

Allegedly, witnesses differed over the colour of the contraband charas

One witness said it was pink; the latter said it was brown

However, this, could not be termed so substantial as to be seen nugatory of the very recovery from the accused

Circumstances established that the prosecution had proved the charge beyond any reasonable shadow of doubt

Appeal was accordingly dismissed.

Prosecution's contention that the flour sack in possession of the accused contained the contraband charas along with the bread crumbs was not shattered visibly and materially

Not even a suggestion was put to the complainant/ Seizing Officer that the flour sack containing the contraband charas, was not in possession of the accused, or belonged to the acquitted co-accused, or that the accused had no knowledge of it

Moreover, it was fully established that the accused was caught red handed, having the contraband charas in the flour sack that contained bread crumbs

Place of the occurrence, too, was not doubted

Place of the occurrence was a thickly populated area, but no private person was associated and only the Police Officials present there were made witnesses of the recovery

However, evidence of the Police Officials who deposed against the accused was not shattered

Evidence of the Police Officials should be scrutinized with care and caution

Thus, where in the circumstances of a case, like the one in hand, the evidence of the Police Officials was natural, consistent, and confidence inspiring, coupled with the fact that neither ill will nor enmity, was, alleged against Police officials or it was alleged but not proved, it would weigh heavily in the scale of justice

Circumstances established that the prosecution had proved the charge beyond any reasonable shadow of doubt

Appeal in hand was accordingly dismissed.

All the witnesses had narrated the episode in astraight forward manner and remained consistent as regards the mode and manner in which the accused was arrested, the process of search and seizure which was carried out, weighment of contraband and separation of samples from the packets coupled with its scaling in separate parcels, arrival of Investigating Officer to the spot and the proceedings he conducted

Keeping in view the consistency in the testimony of prosecution witnesses in juxtaposition with the collected evidence vis-à-vis the peculiar facts and circumstances, the prosecution had not only been successful in proving the factum of recovery, right from the beginning till the end, but had also been successful in proving safe custody of the recovered contraband and its safe transmission to the Forensic Science Laboratory, where the report was received in positive and as such, it had further strengthened the case of the prosecution

Appeal against conviction was accordingly dismissed.

Record showed that the recovery was effected on 21.08.2021, whereas, the sample parcels were sent to, and received by, the laboratory on 24.08.2021

So for all intents and purposes, the requirement of R. 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 pertaining to dispatch of sample parcel to the laboratory within 72 hours, which, though was directory in nature, but even then stood fulfilled

Testimony of Muharrir of the police station and the constable who transmitted the sample parcels to the Forensic Science Laboratory was available

Witness deposed in a straightforward manner that he took out the sample parcels from Maal Khana and sent the same through Constable, who too affirmatively deposed in that respect

While substantiating safe custody, the witness made reference to entry made in Register No. 19, which was available on file

Said piece of evidence supported the version of Muharrir with regard to safe custody

Defence failed to cross-examine the witness either regarding the safe custody or the entry made in Register No. 19 in that respect

As the witness was not cross-examined on material point, so the provisions of Art. 133 of the Qanun-e-Shahadat, 1984, could be pressed into service and as such, such aspect of the case would be deemed to have been admitted by the defence

Circumstances established that the prosecution had fully succeeded in bringing home guilt against the accused

Appeal against conviction was accordingly dismissed.

Prosecution case was that a consignment owned by accused containing 22.038 kilograms heroin was taken into possession by the police

Allegedly, an international smuggler "T" had secretly concealed heroin in the cloth consignment

Admittedly, the prosecution witnesses, i.e., the complainant (Investigating Officer) and recovery witness made a statement revealing that during the investigation, no connection of the accused was found with "T" or that he was aware of the presence of any narcotic substance concealed in the consignment

Said witnesses had not supported the prosecution version

Admittedly, in the presence of the Prosecutor for ANF, the statements of said witnesses were recorded and said witnesses were not declared hostile by the Trial Court

Prosecution witnesses deposed similarly about the role of accused, which was found during the investigation

Otherwise, if the prosecution witness's design was obvious, why the Trial Court could not, during the course of the prosecution witness's cross-examination, permit the person calling him/them as a witness/witnesses to put questions to him/them which might be put in cross-examination by the adverse party

In the course of cross-examination, when favorable answers had been elicited, the same would be considered by the Trial Court while passing the final judgment

Trial Court, while passing the judgment, whereby conviction and sentence of the accused were recorded, had not considered the evidence of the prosecution witnesses

Circumstances established that the prosecution failed to establish the guilt of accused beyond any shadow of doubt

Appeal was allowed accordingly.

Significantly, the chain of custody began with the recovery of the seized drug by the Police and included the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory

Chain of custody was pivotal and 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 would cast doubts on the safe custody and safe transmission of the samples and would impair and vitiate the conclusiveness and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction.

Deposition of complainant reflected that he had not handed over the sample parcels to the Moharrar in the Police Station for keeping the same in safe custody rather retained the same with him till its transmission in the office of Testing Laboratory

In the testimony of Moharrar, he acknowledged the receiving of sample parcels along with the case property from the complainant and its entrustment to Constable for its transmission to the office of Testing Laboratory for analysis

Both the complainant and Moharrar alleged that they had sent the sample parcels to the office of Testing Laboratory but the reports of laboratory totally spoke otherwise that the samples were received in the said office "By Hand"

Reports did not bear name of any person, who submitted the sample parcels in the said office

Safe custody and as well as transmission of sample parcels from the place of occurrence to the Police Station and office of Testing Laboratory was missing, in circumstances

Appeal against conviction was accordingly allowed.

Complete mechanism had been given in Rr. 5 & 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001; the Chemical Examiner was required to adopt complete procedure and then the report was to be submitted after referring necessary protocols and mentioning the tests applied and their results

In the instant case, required test was not applied on the basis of which Chemical Examiner had concluded that the samples sent to him for chemical examination contained opium or charas

Said agency had failed to provide the details that how much quantity he had tested and when the report was not prepared in the prescribed manner then it might not qualify to be called a report in the context of S. 36 of the Control of Narcotic Substances Act, 1997 and such report of Testing Laboratory would lose its sanctity and it could not be relied upon for the purposes of conviction

Appeal against conviction was accordingly allowed.

As regard accused "H", it appeared that he was the proprietor of the firm that shipped three consignments owned by accused "F" including the two from which narcotics were recovered

As per prosecution, "H" arranged financial instrument for the shipment of the impugned consignment to "F"

From the interim challan, it was established that "H" was not found beneficiary of the sale proceeds of the contrabands

In Interim challan, final challan and supplementary challan, "H" had been nominated as an accused for the alleged offence under the Control of Narcotic Substances Act, 1997, without assigning any role

As per prosecution, "H" failed to exercise due diligence and thereby he allowed unauthorized use of his firm by "F" to export his consignment

Such act of the applicant "H"was in violation of S.155-E of the Customs Act, 1969, for which User ID of firm had been blocked

However, as per material available with prosecution, the said applicant had not been found involved in purchasing of salt and packing material for using in smuggling of narcotics or in hiring of the plot where the goods were placed and packed or in funding of the shipment and transportation of the goods from the warehouse to the port

No incriminating evidence was available with prosecution against the said applicant "H" connecting him with the commission of an offence under the Act

Merely using export I.D, license, etc., of the said applicant's company did not constitute per se any offence under the Act

Hence, in such a situation keeping the said applicant "H" behind the bars for an indefinite period would serve no purpose

From the tentative assessment of the evidence on record, it appeared that the prosecution had sufficient material against the applicant "F" to connect him with the commission of alleged offence carrying punishment for death or imprisonment for life

No case for granting bail to "F" on the ground of further inquiry had been made out

Every hypothetical question which could be imagined would not make it a case of further enquiry simply for the reason that it could be answered by the trial Court subsequently after evaluation of evidence

Trafficking/smuggling of ICE in huge quantity could have devastating effects on the society generally and it was a threat to honour of the country in international community particularly

Bail application filed on behalf of "F" was dismissed, accordingly

So far as the bail plea of applicant "H"was concerned, the case against him was found as one of further inquiry as envisaged under subsection (2) of S.497, Cr.P.C.

Bail application filed on behalf "H" was allowed, in circumstances.

Complainant stated that after arrest and recovery, they brought the accused and the case property to Police Station, where he lodged the FIR at 10.30 pm whereas, mashir/Police Constable, during cross-examination, mentioned that they reached Police Post at 10.30 pm

Such inconsistency raised doubts about the availability of the complainant at both places viz. Police Post and Police Station at the same time, i.e., 10.30 pm

Furthermore, the fact that the police party had left the police post, as mentioned in entry No. 20, at 09.00 pm, for patrolling had not been adequately explained by the complainant in relation to the entry of their departure from Police Station or Police Post

During their cross-examination, both the complainant and mashir testified that no private person was present at the time of the alleged recovery

However, it had been admitted by the Investigating Officer that residences and shops were situated near the place of recovery, particularly the shops and houses of a community

Complainant, during his cross-examination, expressed unawareness about the availability of shops at the place of the incident

In light of these discrepancies and uncertainties, the prosecution's case with regard to the recovery and handling of the alleged charas lacked credibility and consistency

Both the complainant and mashir had also contradicted each other regarding the manner in which the memo of arrest and recovery was prepared

According to mashir, the complainant prepared the mashirnama by keeping it on a clipboard, while the complainant stated that he prepared it by keeping it on the bonnet of a mobile vehicle and not on a clipboard

Such loopholes and inconsistencies in the statements of the prosecution witnesses, especially their lack of knowledge about certain realities, raised doubts about the credibility of their testimonies

Appeal against conviction was allowed, in circumstances.

According to the complainant, he deposited case property in malkhana and Investigating Officer had received the same on 23-08-2021

Therefore, it was duty of prosecution to prove that the parcel was kept in malkhana on 22-08-2021 and same remained in safe custody till its delivery to Investigating Officer on 23-08-2021, and it was incumbent upon the prosecution to have adduced the evidence of incharge malkhana, but it failed to do the same

There was no evidence during the intervening period regarding the safe custody of the parcel

Parcel was kept in the malkhana, as entry in register No. 19 produced by the complainant

In order to prove that the parcel was kept in safe custody in the malkhana, the prosecution should have examined the Head Moharrar of the malkhana

Moreover, the safe custody of the parcel and the safe transmission of the sample were questionable, as photostat copy of Road Certificate had been produced without seeking permission for production of photostat copy and furnishing explanation with regard to non-production of the original

Photostat copy was not admissible in evidence until/unless permission for the same is obtained from the Court

Thus, the prosecution failed to prove the delivery of parcel to the Chemical Examiner

As a result, the chain of safe custody was broken, which was a vital and fundamental ingredient in establishing a conviction of the accused under the Act, 1997

Appeal against conviction was allowed, in circumstances.

Neither complainant nor recovery witness had deposed before the Trial Court that charas was handed over to Head Moharir of the police station

Head Moharir had also been examined by the prosecution before Trial Court

Head Moharir had not deposed that from whom he received the parcel of charas for depositing the same in Malkhana

Thus, prosecution utterly failed to prove safe custody and safe transmission of the charas from the spot of recovery till its receipt by Chemical Examiner

Said chain of custody was fundamental as the report of Government Analyst was the main evidence for the purpose of conviction

Prosecution must establish that chain of custody was unbroken, safe and secure but in the present case safe custody and safe transmission could not be established

Appeal against conviction was allowed, in circumstances.

Record showed that the recovered narcotics were sealed on the spot and kept in safe custody at the malkhana from the time of their recovery to the time when they were taken for chemical analysis two days later in sealed condition as confirmed by the chemical report

No suggestion of tampering with the same had been made

Recovered narcotics were kept in the malkhana and on the next day were taken for chemical examination by police witness in sealed condition

Chemical report was positive and all the required protocols were carried out

Circumstances established that the prosecution had proved its case beyond reasonable doubt against the accused

Appeal was accordingly dismissed.

No major contradictions in the evidence of the witnesses were found and minor contradictions which did not affect the materiality of the evidence could be ignored

Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused

Appeal was accordingly dismissed.

First Information Report was registered with promptitude giving no time for concoction and the S.161, Cr.P.C., statements of the witnesses were recorded promptly which were not significantly improved upon by any witness at the time of giving evidence

Arrest and recovery was made on the spot and the accused was caught red handed with the narcotics by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case

Evidence of police witnesses was as reliable as any other witness provided that no enmity existed between them and the accused and in this case no enmity had been suggested or proven against any of the police witnesses and as such the police had no reason to falsely implicate the accused in a false case

Most significantly the narcotics were recovered from the bike which the accused was driving alone with no other passengers and the narcotics were recovered from the back of the bike

Bike was recovered along with the narcotics as per memo of arrest and recovery and was produced in Court along with the recovered narcotics

Under S.29 of Control of Narcotic Substances Act, 1997, once the recovery had been proven, as in this case, the onus would shift to the accused to show his innocence in that at least he had no knowledge of the narcotics

Accused had not been able to do so in this case

In this case, it was extremely difficult and unlikely that such a large amount of narcotics would have been foisted

Furthermore, if the police had wanted to foist the narcotic on the accused, they would have simply foisted one slab on him rather than taking the time consuming and convoluted route of foisting so many smaller packets on him with other packets of narcotics inside

All relevant police entries were exhibited at trial

Accused had a long list of criminal cases against him of similar nature and as such he was a hardened criminal

Although no independent mashir was associated with the arrest and recovery of the accused and the narcotic, S.103, Cr.P.C., was excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S. 25 of said Act

Circumstances established that the prosecution had proved its case beyond reasonable doubt against the accused

Appeal was accordingly dismissed.

Safe custody of the recovered narcotics and its safe transmission to the police station and then to the Chemical Examiner proved

Prosecution case was that 100 kilograms charas was recovered from the vehicle driven by the accused

Record showed that charas was recovered from the vehicle of accused on 17.2.2019, samples were separately sealed and sent through Police Constable to the Chemical Examiner

Chemical report was produced before the Trial Court, which showed that samples were received by Chemical Examiner in sealed packets

Roznamcha entries had also been produced

Said fact was confirmed and testified by the Police Constable, who had taken the samples to the Office of the Chemical Examiner on the second day

Report of the Chemical Examiner also testified that fact, therefore, it could safely be said that safe chain of the custody of the recovered charas was not compromised at all

All the relevant roznamcha entries had been produced before the Trial Court

Trial Court rightly appreciated the evidence and came to the conclusion that prosecution had established safe custody and safe transmission of the sample parcels to the concerned laboratory and report of the Chemical Examiner also contained tests carried out in the result, which corroborated the statements of the prosecution witnesses

Appeal against conviction was dismissed, in circumstances.

In the present case, a huge quantity of charas was recovered from the vehicle of the accused, who was driving it at the time of incident

Moreover, it was quite difficult for the police to foist such huge quantity of narcotics

Duty and obligation of the accused was to prove the specific plea taken by him in defence in terms of Art. 121 of Qanun-e-Shahadat, 1984, but accused had failed to prove the plea that he was doing labour at place "J" at that time

Accused had also failed to examine the witnesses in his defence to substantiate such plea

Trial Court rightly disbelieved such plea while holding that it was an afterthought

Even in the statement recorded under S. 342, Cr.P.C., accused did not agitate the plea that he was doing labour and was taken away on the day of his arrest from his working place

Prosecution succeeded to prove its case on its salient features, and the Trial Court rightly on close analysis came to the conclusion that prosecution proved its case against the accused

Appeal against conviction was dismissed, in circumstances.

At the top of the mashirnama there was no overwriting, but in the body of the mashirnama in the timing 1130 there was some overwriting but it was not fatal to the case of prosecution

Minor contradictions or improvements in the prosecution evidence were to be overlooked

However, only material contradictions or overwriting were to be considered

Accused failed to point out that the overwriting was made dishonestly

Moreover, prosecution had not taken any benefit from such overwriting, therefore, contention of defence was without merit

Prosecution had succeeded to prove its case against the accused

Appeal against conviction was dismissed, in circumstances.

Police Officials were as good as any other private witness unless it was proved that they had any animus against the accused

However, no such mala fide on the part of the Police Officials could be brought on record by the accused in this case

Reluctance of the general public to become a witness/mashir in such like cases had become judicially recognized fact and there was no legal bar/ restriction against considering statement of the official witnesses

Police Officials were as good as any other person and could be relied upon

In this case, evidence of the Police Officials remained un-shattered during cross-examination

Appeal against conviction was dismissed, in circumstances.

Record showed that the incharge of Malkhana had not been examined before the trial Court to prove the safe custody of recovered charas and its safe transmission

Chain of custody or safe custody and safe transmission of narcotics began with seizure of the narcotic by the law enforcement officer, followed by separation of the representative samples of the seized narcotic, storage of the representative samples with the law enforcement agency and then dispatch thereof to the office of the Chemical Examiner for examination and testing

Chain of custody must be safe and secure

This was because, the Report of Chemical Examiner enjoyed very critical and pivotal importance under Control of Narcotic Substances Act, 1997 and the chain of custody ensured that correct representative samples reached the office of the Chemical Examiner

Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic or its representative samples made the report of the Chemical Examiner doubtful so as to justify conviction of the accused

Prosecution, therefore, was to establish that the chain of custody had remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner

However, the facts of the present case revealed that the chain of custody had been compromised at more than one occasion, therefore, reliance could not be placed on the report of the Chemical Examiner to support conviction of the accused

Appeal against conviction was allowed, in circumstances.

According to the statement of complainant, he recovered the narcotics from the accused on 06.05.2020 and prepared the memo of arrest and recovery and handed over the case property to Police Official who deposited the same in Malkhana

Report of Director Laboratories and Chemical Examiner revealed that the narcotics were received by the office on 12.05.2020 after a delay of six days

Probability of tampering with the case property during that intervening period at Malkhana could not be brushed aside

Appeal against conviction was allowed, in circumstances.

Complainant in his cross-examination had admitted that near the place of recovery, i.e. the main gate of Sessions Court, as well as at the gate of Record Room, security was available

Complainant did not call anyone from the security guards to act as mashir

Compplainat admitted he only opened one packet and then sealed all the packets as case property without opening and checking remaining four packets, whereas the mashir of arrest and recovery in his cross-examination had admitted that complainant did not call the security guard of Sessions Court for acting as mashir

Investigating Officer had deposited the case property to Chemical Examiner with the delay of about 06 days

Question arose that as per FIR and the evidence of complainant party, the accused was coming on motorcycle having Charas in his possession but he on seeing the police party neither resisted nor tried to slip away which did not appeal to a prudent mind

All the said things made the case of prosecution doubtful

Appeal against conviction was allowed, in circumstances.

Record showed that the accused was arrested from a chowk which was a thickly populated area and the complainant had sufficient time to call the independent persons of locality to witness the recovery proceedings but it was not done by him for reasons best known to him and only the Police Officials who were subordinates to the complainant were made as mashirs of arrest and recovery proceedings

Judicial approach had to be conscious in dealing with the cases in which entire testimony hinged upon the evidence of Police Officials alone

Provisions of S.103, Cr.P.C., are not attracted to the cases of personal search of accused in narcotic cases but where the alleged recovery was made on a road (as had happened in this case) and people were available there, omission to secure independent mashirs, particularly, in the police case could not be brushed aside lightly

No explanation was on record as to why independent witness had not been associated in the recovery proceedings

No doubt police witnesses were as good as other independent witnesses and conviction could be recorded on their evidence, but their testimony should be reliable, dependable, trustworthy and confidence worthy

If such qualities were missing in their evidence, no conviction could be passed on the basis of evidence of police witnesses

Appeal against conviction was allowed, in circumstances.

Record showed that the narcotics were sealed at the time of recovery and kept in the malkhana for which the person who recovered the narcotics was examined; the person who deposited the narcotics in the malkhana was examined; the head of the malkhana was also examined; the person who took the narcotics to the Chemical Examiner one day later was also examined and all the relevant malkhana entries had been exhibited

Thus safe custody of the narcotics had been proven from the time it was recovered until the time it was sent to the chemical examiner

Even no suggestion of tampering with the narcotics was made by the accused persons during cross-examination

Chemical Report proved to be positive and all relevant protocols were followed

Balance of the recovered narcotics which were not sent for chemical analysis apart from a representative sample was burnt on the orders of the court as per evidence of official witness who produced both the memo and certificate of sampling and burning respectively and that's why the whole case property was not available before the Court

Circumstances established that the prosecution had proved the case beyond a reasonable doubt

Appeal against conviction was dismissed, in circumstances.

Although no independent mashir was associated with the arrest and recovery of the accused persons and the narcotics, however this was not surprising because people despite being asked, as in this case, were reluctant to be involved in cases concerning narcotic dealers

Even otherwise, S. 103, Cr.P.C. was excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S. 25 of the said Act

Circumstances established that the prosecution had proved the case beyond a reasonable doubt

Appeal against conviction was dismissed, in circumstances.

Under S. 29 Control of Narcotic Substances Act, 1997, once the recovery had been proven as in this case, the onus shifted to the accused to show his innocence in that at least he had no knowledge of the narcotics

Accused persons, who were the driver and front passenger of the car respectively, had not been able to do so in this case as the evidence showed that the narcotics were recovered from the car which one accused was driving and the other accused was sitting in the front passenger seat of the car

Accused persons pointed out to the police where the narcotics were hidden in the car and as such they were caught red handed and arrested on the spot along with the narcotics which were hidden in wrappers and were recovered from the back of the car

Circumstances established that the prosecution had proved the case beyond a reasonable doubt

Appeal against conviction was dismissed, in circumstances.