Possession of narcotic

No specific prohibition was available for recording plea of guilt at any stage of trial and such arrangement in no case was opposed to right to fair trial if accused opted to waive the same to cut short the process in order to avoid the agony or rigors of protracted trial

However, Court was always on guard to take a careful look why the accused was admitting his guilt and should ensure that the trial of offence entailing capital punishment should not be terminated merely on the admission of guilt by the accused, for which recording of evidence was essential

Admission of guilt in the present case recorded by the Trial Court could not be declared illegal in the given circumstances

Such mode was perfect, in consonance with the dictum laid down by the apex Court; therefore, impugned judgment did not suffer from any illegality and called for no interference

Appeal was dismissed in limine, in circumstances.

If after attending the processes of trial the accused was to meet a particular sentence range then the Court could record plea of guilt at any stage, even mid-way, if accused was ready to assist and facilitate the system for cost-reduction of prosecution case and could reward the accused with minimum sentence range as a State bounty

As per S. 9(8) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, on pleading guilty by the accused, prosecutors were required to suggest appropriate sentence range

As per 'Code of Conduct for Prosecutors' issued under S. 17 of Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, while applying 'Full Code Test' which included evidential test and public interest test, it could be applied at any appropriate stage keeping in view the requirement of the said Code

Prosecutors should ensure that prosecution of an offence must be a "Proportionate Response" which meant that quantum of sentence must commensurate to the costs of prosecution

When an accused voluntarily admitted his guilt before the Court, he must be dealt with more leniently in terms of quantum of sentence

Appeal was dismissed in limine, in circumstances.

In the cases under Control of Narcotic Substances Act, 1997, it is the duty of the prosecution to establish each and every step from the stage of recovery, making of sample parcels, safe custody of sample parcels and safe transmission of the sample parcels to the concerned laboratory

This chain has to be established by the prosecution and if any link is missing, the benefit of the same has to be extended to the accused

Prosecution is under a bounded responsibility to drive home the charge against an accused by proving each limb of its case that essentially includes production of the witness tasked with the responsibility of transmitting the samples to the office of Chemical Examiner and failure to do the same can cast away the entire prosecution case.

So far as the case of the appellant "MH" was concerned, his case was distinguishable as he was found to be sitting alongside the driver-accused "AJ"

Prosecution had failed to establish that he had any knowledge about the narcotic substance concealed in the CNG cylinder lying in the boot of the car

Thus, prosecution had failed to prove the indictment against accused "MH"

Appeal against the conviction of accused "MH" accused was allowed.

Head Moharror, who was one of the prosecution witnesses, stated in his cross-examination that the samples for analysis were sent to laboratory by a special messenger

Said witness stated that his statement under S. 161, Cr.P.C., was recorded on 27th February, whereas the incident took place on 4th February, as such there was a delay of 23 days in recording of statement of said witness

Such delay made the case of prosecution doubtful

In case of any doubt arising in the link of chain of safe custody and transmission, the benefit of the same will go to the accused

Appeal against conviction was allowed, in circumstances.

Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of Narcotic Substances (Amendment) Act, 2022], S. 9(1)(3)(c)

Possession of narcotic

Bail, grant of

Further inquiry

Accused-applicant had been indicted for having a black polythene bag in his right hand, wherein baked charas in slate form weighing 1090 grams was recovered

Fleeting view of the record, more particularly, the FIR and memo of recovery showed that the charas was weighed with the polythene bag, which was found to be 1090 grams, thus, the prosecution had failed to show that if the polythene bag of charas was separated than what would be the net weight of the charas, henceforth, it would be a case of further inquiry as to whether the recovered charas squared under S. 9(1)(3)(b) or under S. 9(1)(3)(c) of the Act of 1997, in order to determine the quantum of punishment as well as to find out as to whether the sentence fell within the prohibitory clause of S. 497 of Cr.P.C or otherwise

In wake of the above, it could be gathered with no other view that eventually it became a border line case between Cls. (b) & (c) of S. 9 of the Act of 1997 as the weight was slightly higher than the prescribed limit of S.9(1)(3)(b)

Admittedly, S. 9(1)(3)(b) did not fall under the prohibitory clause of S. 497 of Cr.P.C, which entitled the accused-applicant for the concession of bail on the principle that bail in offences not falling in prohibitory clause was a rule, whilst its refusal was an exception

Petition was allowed and accused was admitted to bail, in circumstances.

Complainant, in his cross-examination, stated that some quantity of the charas was recovered from the rear seat of the vehicle and some quantity was recovered from beneath the seat of the vehicle

On the other hand, recovery witness stated during cross-examination that the alleged charas was recovered from the secret cavities of the back side of the seat

During cross-examination, the complainant stated that he and two other constables searched the vehicle

On the other hand, recovery witness stated during cross-examination that he and other witness conducted a search of the vehicle

Complainant stated during cross-examination that they reached the place of occurrence at 1:00 am

On the other hand, recovery witness stated that they reached the place of the occurrence at 2:00 am

Such material contradictions in the statements of witnesses made the case of prosecution doubtful

Appeal against the conviction was allowed, in circumstances.

Record showed that neither the Moharrar of the police station was produced before the Court nor his statement under S.161, Cr.P.C, was recorded by the Investigating Officer

Recovery was effected on 10.11.2021, whereas the sample parcels were received in the laboratory on 13.11.2021, and the prosecution was silent as to where the said sample parcels remained during that period

Meaning thereby that the element of tampering with parcel was quite apparent in the case

Appeal against the conviction was allowed, in circumstances.

Alleged occurrence took place on 10.11.2020 at 3:00 am and the FIR was lodged on 10.11.2021 at 8:00 am with a delay of five hours without any explanation

Object of recording of murasilla or registration of FIR, apart from setting law into motion, was to provide a base for carrying out an investigation in the right direction

No doubt, there were no hard and fast rules regarding the duration of time consumed in the registration of FIR, but such prompt measure would rule out the possibility of deliberation, consultation and enquiry before furnishing the information

Element of delay in lodging the crime report was treated with caution because there was a tendency to involve innocent people during the interval

Longer the intermission, greater the chances of false implication, therefore, it was necessary for the prosecution to at least come forward with a plausible explanation for the delay caused

In the instant case, no such plausible explanation came on record for lodging the FIR with such delay

Appeal against the conviction was allowed, in circumstances.

As per contents of FIR, accused was apprehended from B & R Chowk and 1085 grams of hashish [charas] was recovered as a result of body search

However in murasila, 1185 grams `was mentioned, whereas as per statement of Investigating Officer of the case 185 grams charas was recovered from the accused, which created serious doubt in the prosecution case

According to prosecution case, the accused was apprehended on prior spy information by the police party during patrolling from hub of the city i.e. B & R Chowk, being a thickly populated area, when he was selling hashish, but the complainant did not associate any person to act as masheer and witness to the recovery proceedings

Investigating Officer did not try to associate private persons to witness the alleged recovery at the time of receiving spy information

Provisions of S.103, Cr.P.C, were not attracted to the cases of personal search of accused, however, in case of prior information, failure to secure independent witnesses, particularly, in case of a recovery, could not be brushed aside lightly by the Court

S.25 of the Act 1997 excluded the applicability of S.103 Cr.P.C, which required two or more respectable inhabitants of the locality to be associated when search was made, however, it was not understandable why the complainant or any other member of the raiding party did not photograph or make a video recording during the whole episode of alleged recovery within the purview of S.164 of the Qanun-e- Shahadat, 1984

Another material aspect of the case, which had been overlooked by the Trial Court was the selling of charas by the accused

Accused was allegedly selling charas but no purchaser was present at the alleged time of sale of charas because no statement of the purchaser seemed to have been recorded and sale money had also not been recovered from the accused at the time of arrest by the Investigation Officer, as such the allegation seemed to be fallacious

Appeal against conviction was allowed, in circumstances.

Under the law a complainant and an accused person were considered to be two opponents/ rivals, as such, they were contesting parties, supporting their respective pleas/ claims, whereas, the role of an Investigating Officer was to unearth the truth

Investigating Officer could not be expected to be a party in the case and that was what the relevant law on the subject spoke

Rule 25.2(3) of the Police Rules, 1934, as well as Art. 18 of Police Orders, 2002, mandated that an Investigating Officer was duty bound to dig-out the truth and actual facts of the case and he should not be guilty of a partisan approach

If the said yardstick was applied to the case of the accused then it was an admitted fact floating on the surface of the record that the complainant by acting as an Investigating Officer could not be expected to be fair and transparent especially when the accused in his statement recorded under S. 342, Cr.P.C. had alleged a specific plea of mala fide involvement of the Levy Officials, in particular the complainant of the subject event

Record showed that the investigation had been carried out by an Official, who was below the rank of Sub-Inspector

Therefore, the impugned conviction and sentence was not maintainable in the eyes of law

Appeal against conviction was allowed, in circumstances.

Case under the Control of Narcotic Substances Act, 1997, contained two components/limbs i.e. firstly, the prosecution is bound to establish the safe custody and safe transmission from the place of recovery of seized drug by the police, including separation of representative parcels of the seized drug and its despatch to the testing laboratory

Secondly, the chain of custody of the parcel(s) containing the 'case property' is also pivotal, and the prosecution is also supposed to prove its safe custody as far as the same remained with the police and then despatched to the Trial Court as a 'case property' intact

Any break in the chain of custody or lapse in the control of possession of the samples containing case property causes doubt about its safe custody and safe transmission to the Court of law.

As per testimony of HC/Moharrar Police Station, he handed over the parcels containing the case property to complainant of the case, for depositing the same in Malkhana on 06.09.2022

Said complainant, while appearing before the Trial Court, did not depose a single word regarding receiving the parcel(s) containing case property from Moharrar Police Station for depositing the same in Malkhana

Said fact showed that complainant did not depose about receiving of parcels containing case property for depositing the same in the Malkhana in safe custody

Prosecution failed to adduce evidence qua the safe custody and safe transmission of the samples containing the 'case property's

Complainant had not deposed in the line of the assertion of HC/Moharrar of Police Station, wherein he claimed that he handed over the parcels containing the case property to the said complainant, rather he did not utter a single word about handing over the parcels containing the 'case property' to him

Meaning thereby that an important link was missing regarding the safe custody of the 'case property'

Hence, in all eventualities the parcels containing the 'case property' could not be used against the accused

So, accused could not be held guilty of the quantity i.e. 3011 grams of charas and as such conviction and sentence awarded to him by the Trial Court under S.9 (c) of the Act could not be allowed to stand, rather he would be convicted and sentenced to the extent of samples consisting of 54/54 grams and 51 grams (total 159 grams), which were received in the Forensic Science Agency and the same were tested as positive through report

Therefore, conviction recorded by the Trial Court was converted from S.9 (c) to S.9 (b) of the Act and he was sentenced to one year and three months rigorous imprisonment

Appeal was dismissed with modification in sentence.

According to the complainant, he handed over the parcel to the Investigating Officer on 16.11.2021 after the registration of the FIR

However, the evidence provided by the Investigating Officer was silent regarding the safe custody of the parcel till its dispatch to the Chemical Examiner

Investigating Officer mentioned that he dispatched the parcel to the Chemical Examiner on next day i.e. 17.11.2021, without explaining where he kept the parcel during the 24-hours period from 16.11.2021 to 17.11.2021

Furthermore, the Investigating Officer stated that he delivered the parcel to Police Constable and made entry No.5, after which he left the Police Station at 10:30 hours for which he produced a document

However, the Chemical Report produced by the Investigating Officer indicated that the parcel was received through Police Constable on 17.11.2021

On the other hand, during cross-examination, the mashir of the recovery clearly testified that the Investigating Officer handed over the case property to him on 17.11.2021 at 10.00 am for depositing it in the Chemical Laboratory

Evidence of the Investigating Officer was recorded after the evidence of mashir but he failed to testify about Road Certificate

As a result, the evidence of the Investigating Officer and mashir appeared to be contradictory regarding the delivery of the parcel to the Chemical Examiner

In such a situation, if evidence of Investigating Officer was believed then credibility of the mashir became doubtful and unreliable

Safe custody of recovered substance as well as safe transmission had not been established before the Trial Court

Mere recovery of narcotics was not the sole criterion for convicting an accused charged with trafficking of contraband

Prosecution must prove the recovery beyond reasonable doubt with confidence-inspiring and reliable evidence, which unfortunately was not the case in the present case

Appeal against conviction was allowed, in circumstances.

Notably, the Investigating Officer failed to provide any information as to who kept the parcel in malkhana, even though an attested photocopy of entry No. 137 of Register No. 19 of malkhana was produced

Additionally, neither the statement of the incharge of malkhana was recorded nor he was produced as a witness to establish the safe custody of the parcel from 16.11.2021 to 17.11.2021

Moreover, there were two conflicting claims about the delivery of the sealed parcel to the Chemical Examiner, one from mashir and another from Police Constable, who stated that the case property in sealed condition along with a letter and Road Certificate were delivered to him by the Investigating Officer, which he then deposited with the Chemical Examiner

Such contradictions raised significant doubts about the proper delivery of the parcel to the Chemical Examiner

Failure of Investigating Officer to establish the safe custody of the parcel, lead to an apparent break in the chain of custody and safe transmission of the parcel in the case

In such situations the benefit should be given to the accused

Further upon close re-examination of the Investigating Officer's evidence, it was observed that during his cross-examination, he failed to recall the name of the person through whom he dispatched the parcel to the Chemical Examiner

Additionally, the Investigating Officer also failed to recognize Road Certificate No. 43179 initially and stated that he dispatched the parcel under Road Certificate bearing the number 121379

However, when Road Certificate was shown to him, he then admitted that it bore Road Certificate No. 43179 and not 121379

Such inconsistency raised doubts about the accuracy and reliability of the evidence provided by the Investigating Officer

Appeal against conviction was allowed, in circumstances.

Prosecution case was that 25 packets of charas weighing 30 kilos and 900 grams were recovered from the rickshaw driven by the accused

In the case in hand the property was sent to the Chemical Analyst through a letter by the Investigation Officer who took the property from police station to Chemical Examiner

Said letter was silent and even the report of Chemical Examiner was silent in such regard

It was only mentioned that the property was received through a letter of the Investigating Officer

Presumption could be drawn that the prosecution failed to produce the witness who brought the property/ contraband for chemical examination and its failure cut the chain of evidence necessary to prove the case against the accused in terms of safe custody

Furthermore no malkhana entry was produced nor head of the malkhana was examined

In other words the prosecution had not proved the safe transmission of the property to the Chemical Examiner which created serious doubt in its case

Complainant handed over the contraband to the Investigation Officer on 15-12-2020 and the same was sent for chemical examination on 16-12-2020 but where it remained for such period the prosecution had failed to explain

Thus, the prosecution had failed to prove safe custody of the contraband

Appeal against conviction was allowed, in circumstances.

Prosecution case was that 25 packets of charas weighing 30 kilos and 900 grams were recovered from the rickshaw driven by the accused

Complainant in his examination-in-chief deposed that the memo was prepared by Munshi on his dictation who was called from police station

Mashir in whose presence the memo was papered and who also signed the same as a witness in his cross-examination stated that complainant prepared the memo inside police mobile cabin on which he signed as a witness

Complainant during his cross-examination stated that no private witness was available at the place of incident therefore he made Police Officials as witnesses

Mashir/witness had deposed against such fact and stated during cross-examination that complainant did not try to associate any private person and that he called private persons but people did not cooperate

Prosecution case was that entire recovered contraband was sealed at the spot and no samples were separated from any of the slabs

Such fact was also admitted by the witnesses in their evidence but the letter issued for sending the contraband for chemical examination addressed to the incharge Chemical Examiner showed that at serial No.4 sealed sample was also mentioned as sent for chemical examination which created very serious doubt in the prosecution case

Such contradictions clearly indicated that the complainant and mashir were not the true eye-witnesses of the incident and no such incident of arrest of accused and recovery of charas from the possession of accused had occurred as alleged by the prosecution

Both the witnesses contradicted each other on material aspects of the case

No implicit reliance could be placed in view of said contradictions on the evidence of prosecution witnesses

Appeal against conviction was allowed, in circumstances.

Complainant stated that the case property was deposited in the Malkhana on the day of arrest and produced an entry on that score

He went on to say that the samples were sent to the Chemical Examiner the same day (i.e. 06.05.2018), but without any narration as to who the task was entrusted to or any explanation as to how the samples were retrieved from the Malkhana and by whom

Report of the Chemical Examiner reflected that the samples were delivered through a Constable, but he was not called upon to depose in the matter to demonstrate the sanctity of the chain of custody

Furthermore, the report stated that the samples were received on 07.05.2018, which gave rise to the question as to where the same were kept during the intervening period and raised some doubt as to the integrity of the chain

Appeal against conviction was allowed, in circumstances.

Complainant stated that the place of incident was a busy road and the police party had asked passers-by to serve as witnesses, but they had refused, and had also called upon persons from the nearby restaurant to perform such a function, but they too had refused

Whereas mashir deposed that no such effort or attempt was made

Samples were said to have been separated from each of the twenty-five slabs of charas, and each sample then wrapped in white paper and then sealed

Vessel in which they were sealed (i.e. bag, cloth, etc.) had not been disclosed

Furthermore, the Chemical Examiner's Report discrepantly showed that each of the white paper packets received contained a black brown piece wrapped in plastic, whereas such plastic wrapping did not find any mention in the memo of search, recovery and arrest or the depositions of the witnesses

Appeal against conviction was allowed, in circumstances.

Record showed that the police party left their station at about 10 pm on 05.05.2018 and were said to have taken a mere 25 minutes to reach the place where the arrest was shown to have been made at 4.30 am the next morning, leaving a period of over six hours

Witnesses stated that they had not checked any vehicle prior to the time that they stopped the accused persons, by happenstance it seemed, as there was no mention of any tip received from an informant

With a vehicle said to have been laden with charas under the mere cover of a tarpaulin, the accused persons were stated to have brought the same to a halt virtually at the feet of the complainant on the mere signal from his torch, all of which beggared belief

Incongruously, no documents or papers that might be associated with a road journey (i.e. driving licenses, fuel receipts, toll tickets, or restaurant bills, fuel bills) were recovered

Currency notes said to have been recovered from the accused persons on their personal search were not inventoried, sealed or produced

Appeal against conviction was allowed, in circumstances.

Record showed that the trial Court without referring to the report of Chemical Analyst and his conclusion, convicted and sentenced the accused, which had apparently resulted in gross miscarriage of justice

Accused could be convicted and sentenced in narcotics cases only when the substance recovered from him was found by Chemical Analyst to be narcotics

If the laboratory report in regard to substance was negative and there was no evidence to rebut the same and conclude that the substance was narcotics, then irrespective of the quality of evidence of the witnesses, accused could not be held guilty of committing an offence under the provisions of Control of Narcotic Substances Act, 1997

In such circumstances the charge would become groundless

Trial Court in presence of negative report could have opted to refer the substance to another laboratory for cross checking and second opinion if was not satisfied with the report, but the Trial Court choose to bypass it and decided the case on the basis of evidence completely ignoring the findings of laboratory qua nature of substance allegedly recovered from the accused

Appeal against conviction was allowed, in circumstances.

In the report dated 09.09.2020 issued by the Chemical Examiner, the gross weight of the slab of charas was specified as being 1075 grams, and the net weight was stated to be 1071 grams which in both cases was disparate from the quantity otherwise reflected in the official record

Head of the Malkhana was also not examined by the prosecution

Contradiction/deviation in the weight of the quantity of charas casted significant doubt on whether the slab sent for analysis to the Chemical Examiner was in fact recovered from the accused, particularly when viewed in conjunction with the fact that the only persons who were witnesses to the arrest were those shown to be members of the very police party that was instrumental in that regard, and no private persons were inducted for such purpose albeit the police party ostensibly having advance information through a tip received from a confidential informant and the arrest shown to have taken place in broad daylight, at 12.30 p.m.

As such, the sanctity of the chain of custody was doubtful and the report of the Chemical Examiner was stripped of probative value

Complainant stated in his examination-in-chief that he arrested the accused on pointation of spy, however replied contrarily under cross-examination that the spy had tipped him off via telephone and that he reached at the place of incident within ten minutes from receiving such information

However, testimony of complainant was silent as to how the spy then came to accompany the police party

Other relevant prosecution witness, Police Constable also did not state during his examination-in-chief that any spy information had been received, and conceded under cross-examination that his testimony was bereft of such mention

Appeal against conviction was allowed, in circumstances.

As per available record, the narcotic was recovered from accused on 08.11.2019 and the memo of arrest and recovery was prepared and the narcotic was deposited in Malkhana

Report of Director Laboratories and Chemical Examiner revealed that the charas was received by hand in the office on 11.11.2019 through Police Constable after a delay of three days but evidence on the record was silent that where the same remained for three days from 08.11.2019 to 11.11.2019

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Contention of the accused was that no private person was joined in recovery proceedings except Police Officials, which was a violation of S. 103, Cr.P.C.

Validity

As per FIR the complainant party was available at police station where spy appeared and gave information about the offence and when the police party reached near a petrol pump they saw the present accused persons coming in a car; they got it stopped and apprehended the accused and recovered 28 kilograms of charas from their possession

However, it had come in evidence that the accused were arrested from near a petrol pump leading road, which was a thickly populated area and the complainant had sufficient time to call the independent persons of the 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 being subordinates to him were made as mashirs of arrest and recovery proceedings

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

Provisions of S. 103, Cr.P.C., were not attracted to 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), omission to secure independent mashirs, particularly, in police case could not be brushed aside lightly by the court

No explanation on record was available as to why no independent person either from the place where they received spy information or from the place of incident had been joined to witness the recovery proceedings though it was a day time incident

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Accused stated that he had been falsely implicated in the case at hand at the instance of his uncle with whom he had property dispute

Similarly, other accused took the plea that he had some business transaction with one Mr. "F" and on demand of his outstanding amount of Rs.7,00,000/- he had been involved in the case

Another accused also stated that he contracted love marriage with Mst. "Z" hence his in-laws being antagonized of such marriage had falsely implicated him in this case

Number of documents had been annexed with their respective statements to prove their innocence but the same were not considered by the Trial Court

If the specific allegation of animosity was leveled against the complainant, the prosecution should be more careful in respect of establishing the case and some private and independent witness ought to have been examined

Non-examination of private and independent witness had thrown thick clouds of doubt on the entire prosecution case

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Record showed that there were a number of contradictions between the evidence of prosecution witnesses which could not be easily brushed aside

Conduct of the police showed that investigation had been carried out in a casual and stereotype manner without making an effort to discover the actual facts/truth

Apart from above, there were also discrepancies and flaws in the evidence of prosecution witnesses

Complainant in his cross-examination had deposed that at the time of filing charge sheet report, property was not deposited in court malkhana

Size of charas slabs and colour of charas were not mentioned in the memo of arrest and recovery

Complainant admitted as correct that he did not produce roznamcha entry about handing over the case property to malkhana incharge

Complainant did not record the statement of malkhana incharge on same date

In memo of arrest and recovery, car colour, engine number, chasis number, model and manufacturing company name and word 'Cultus' were not written

Complainant did not disclose the ANF team's vehicle registration number, make and model and also the colour

Wife of one of the accused persons filed application against complainant regarding harassment and illegal demand to high ups of complainant

Complainant did not note the time of memo of arrest and recovery preparation

Said witness had not specifically disclosed the sealing of articles in the case

Total narcotic which allegedly was recovered from the accused persons was of 28 kilograms but only 560 grams as sample was sent to the Chemical Examiner

No mention was made of the time of depositing of case property in malkhana and when it was removed

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

If the owner of the car was not an accused, then he must have been associated as witness in the case to clarify how the car went into the hands of the accused and under what capacity the possession of such vehicle was with claimed possessor of said vehicle

Non-associating the owner of the vehicle/car in the case, in any capacity created a serious doubt regarding the prosecution case that the accused persons were in exclusive possession of such vehicle, hence it would be not safe to saddle them with the claimed recovery

No log book was produced by the police

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

If safe custody of narcotic and its transmission through safe hands was not established on the record, same could not be used against the accused

Chain of custody or safe custody and safe transmission of narcotic 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

Said chain of custody must be safe and secure

This was because, the Report of Chemical Examiner enjoyed very critical and pivotal importance under the 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 to justify conviction of the accused

Moreover, it was a matter of record that the charas was recovered from possession of accused on 08.11.2019 and was kept in Malkhana but it had not been proved that it was a safe transit case

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

No document was available on record which confirmed that departure and entry in the police station had been entered in the record

Admitted by complainant in cross examination that when he along with other Police Officials reached at bus stand the car was parked and the accused was sitting on the driving seat

During the course of cross-examination, complainant confirmed that the substance was recovered from beneath the cavity between the dashboard and screen tap and in that regard he was confronted with a picture, thereafter, he acknowledged three cavities existed and also confirmed that it was correct that beneath the screen tap no cavity existed

Recovery witness also narrated the same story as of the complainant and also additionally explained the personal search of the accused in which two Mobile Phones, driving license, wallet with different cards and Rs.3100/- were recovered which were taken into possession by Investigating Officer

Both the star witnesses had not uttered a single word qua the disclosure and subsequently the recovery of narcotics on the pointation of the accused which was the key factor

As per stance of the prosecution the narcotics had been recovered from the secret cavity of the dashboard beneath the screen tap and such recovery had been effected by the Investigating Officer himself without any disclosure made by the accused, therefore, it was incumbent upon the State to demonstrate that accused had some connection with the vehicle except that he was sitting on the driving seat in a parked car at the place of occurrence i.e. the bus stand

No person from the public had been associated with the recovery proceedings

Such lapse on the part of the Investigating Officer would go against the prosecution

Appeal against conviction was allowed, in circumstances.

Record showed that the Investigating Officer had not put any serious effort to demonstrate from the record in respect of the ownership of the vehicle nor it was the case of the prosecution that the accused owned the subject vehicle

In such scenario, it was the duty of the prosecution to demonstrate from the record firstly, that the accused knew about the existence of the cavity in the body of the vehicle, and if yes the same should have been demonstrated from some evidence

Secondly, the accused had the requisite knowledge about the availability of narcotic substance in such cavity of the vehicle, but entire evidence of Investigating Officer suggested that no evidence worth its nature had been brought on the record to establish that accused had conscious knowledge about the availability of the narcotic substance in the secret cavity of the relevant vehicle in which he was sitting

Investigating Officer had not put any serious effort to verify the registration number of the vehicle from the Excise and Taxation Office nor any report was called in that regard, and even the recovery memo of personal search was silent qua availability of registration book on record

All such aspects lacked the ingredients of exclusive knowledge of the accused as no connection had been made by the Investigating Officer in the investigation to the extent of accused with the vehicle in question

Appeal against conviction was allowed, in circumstances.

Section 29 Control of Narcotic Substances Act, 1997, created the presumption of the commission of an offence under said Act where a person is found in possession of narcotics, for the possession of which he fails to account satisfactorily

Possession comes first and accounting for it comes later

If there is no possession, there is no accounting for such possession and mere knowledge of the presence of drugs without such possession does not suffice even to raise the presumption under S.29 of the Act, 1997.

Prosecution case was that six kilograms charas, 4.8 kilograms opium and 14 kilograms heroin were recovered from the possession of the accused persons while they were going on a car

Record showed that each accused made his and her own independent disclosure and got recovered the drugs under his and her possession and control

One of the accused persons got the drugs recovered from under his front seat, female accused from the travel bag under her possession and other accused from the car boot

There was nothing at all in the evidence to conclude that each of the passengers had control and possession of the drugs carried by his or her co-passengers their knowledge of their co-passengers caches notwithstanding

Joint and collective liability rests on joint and collective possession

As per the prosecution's own case each co-passenger made a distinct disclosure and got recovered only the drug caches that was in his or her possession

However, it would be remiss in attributing an implied statement or admission to the accused persons that each one of them had asserted some sort of possessory right and control over his or her co-passengers' drug caches

Prosecution's zeal to secure the maximum sentences must not let the Court be blinded to the fundamental burden of proof beyond reasonable doubt, which could not be replaced by a presumptive argument of each accused being assumed to be in equal possession and control of the other co-passengers' caches for an incantation of the doctrine of joint and collective liability

Appeal against conviction was dismissed, in circumstances.

It does not spell as to whether in case of any lapse, they would automatically become instrumental to discard the whole prosecution case.

Such testimonies are required to be treated in the same manner as the testimony of any other witness and there is no principle of law that without corroboration from independent witnesses, their testimonies cannot be relied upon

Presumption that a person acts honestly applies, as much in favour of police personnel as of other persons and it is not proper judicial approach to distrust and suspect them without good grounds.

Both these witnesses had narrated the prosecution story in a natural manner and remained consistent throughout and their testimony could not be shattered by the defence despite lengthy cross-examination

Said witnesses had no enmity with the accused to falsely implicate him in the present case

Even otherwise a huge quantity of 563 kilograms of contraband charas and 1500 grams of opium in no circumstances could be planted by the Investigating Officer of his own

Prosecution has successfully established its case by further proving that the contraband so recovered from the possession of the accused was weighed, packed and then sent for chemical examination, which on examination was found to be charas

Prosecution witnesses of recovery remained firm on each and every material particular of the prosecution story and their testimony could not be shaken

Safe chain of custody of the recovered narcotics was not compromised at all

Appeal against conviction was dismissed.

In cases under section 9(c) of the Control of Narcotic Substances Act, 1997, it is duty of the prosecution to establish each and every step from the stage of recovery, making of sample parcels, safe custody of sample parcels and safe transmission of the sample parcels to the concerned laboratory

Such chain has to be established by the prosecution and if any link is missing in such like offences the benefit must be extended to the accused

In a case containing the said defect on the part of the prosecution it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt.

Recovery was effected on 18.12.2013 and the sample parcels were received in the office of Chemical Examiner on 20.12.2013 by one police official but the said official was never produced before the Court

Moharrar of the Malkhana was also not produced to confirm that he kept the sample parcels in the Malkhana in safe custody from 18.12.2013 to 20.12.2013

Where and in whose custody the sample parcel remained during such time remained a mystery

So the safe custody and safe transmission of the sample parcels was not established by the prosecution and such defect on the part of the prosecution by itself was sufficient to extend benefit of doubt to the accused

Furthermore, there was no direct evidence available on record to indicate the accused had exclusive knowledge of presence of narcotics in the luggage lying in the boot of vehicle

Judicial confession of accused was exculpatory confession and from the said confession, conscious knowledge and conscious possession of the narcotics, qua the accused, was not established; hence, his conviction on such exculpatory statement/ confession was not sustainable

Appeal was allowed and accused was acquitted of the charge.

Prosecution case was that 32 kilograms charas in 27 packets and one packet of opium weighing 500 grams were recovered from the possession of the accused while he was travelling in a passenger bus

Defence objected that the representative samples had not been taken from the recovered contraband material

Validity

Complainant specifically stated that sample from each packet weighing 50/50 grams, total 1350 grams from the recovered Charas and 50 grams from the Opium, was separated for chemical analysis and that portion of his statement was not challenged in the cross-examination

Forensic Science Laboratory Report further supported the contentions of complainant

Circumstances established that the prosecution succeeded in proving its case against the accused beyond any reasonable doubt

Appeal against conviction was dismissed accordingly.

Prosecution case was that 32 kilograms charas in 27 packets and one packet of opium weighing 500 grams were recovered from the possession of the accused while he was travelling in a passenger bus

Defence objected that there was sheer violation of S. 103, Cr.P.C. for not associating private mashir, despite the fact that private persons were also travelling in the passenger bus

Validity

Section 25 of the Act, 1997, denoted that non-compliance of S. 103, Cr.P.C., could not be considered as strong ground for holding that trial of accused was bad in the eye of law, as official witnesses were competent witnesses and their statements could not be discarded merely for the reason that they belonged to any department

Section 25 of the Act of 1997 suggested that there was no provision to comply the S. 103, Cr.P.C

On the other hand, the complainant categorically stated while lodging the FIR that no one from the passengers was ready to be associated as a private Mushir

Official witnesses were trustworthy witnesses, until and unless, any ill-will of the said witnesses was found towards the accused

In the present case, defence had failed to point out any ill-will of the Coast Guard Officials against the accused

Circumstances established that the prosecution succeeded in proving its case against the accused beyond any reasonable doubt

Appeal against conviction was dismissed accordingly.

Prosecution case was that 32 kilograms charas in 27 packets and one packet of opium weighing 500 grams were recovered from the possession of the accused while he was travelling in a passenger bus

Though, there were minor contradictions in the statements of the witnesses, but such contradictions could not dent the prosecution story and the acquittal order could not be passed merely on minor contradictions

Circumstances established that the prosecution succeeded in proving its case against the accused beyond any reasonable doubt

Appeal against conviction was dismissed accordingly.

Prosecution case was that 32 kilograms charas in 27 packets and one packet of opium weighing 500 grams were recovered from the possession of the accused while he was travelling in a passenger bus

Perusal of record revealed that prosecution in support of its case produced as many as five witnesses, out of whom, two were the star/eye-witnesses of the case

Perusal of statement of complainant showed that he had narrated the same facts and figures, as laid down in the FIR, about the recovery of 27 packets of charas weighing 32 kilograms and 01 packet of opium weighing 500 grams from the bag owned by the accused

Statement of complainant further revealed that his statement was in line with the FIR while narrating the facts in respect of date, time, place and mode of recovery

Circumstances established that the prosecution succeeded in proving its case against the accused beyond any reasonable doubt

Appeal against conviction was dismissed accordingly.

Prosecution case was that forty four packets of charas, total weighing 55893 grams, were recovered from the secret cavities of the truck driven by the accused

Defence referred to some minor discrepancies in the statements of the witnesses, but they were not of such a nature, which could be pressed into service to dislodge the trustworthy eye-witness account of the witnesses on one hand and the inherent worth of the collected material, on the other

Defense could not bring on record as to what mala fide either the complainant or the Investigating Officer or even any other Police Official had against the accused to charge him for commission of the offence and to plant such a huge quantity of narcotics against him

Moreso, it could not be ignored that the recovery was effected way back in the year 2020, whereas, the witnesses faced the test of cross-examination after an extensive length of time in the year 2021, so minor contradictions with regard to the timings as to when the information was received, when the Investigating Officer reached to the spot and when they left the same were bound to occur, as the Police Officials were and are conducting similar proceedings on day to day basis and it would be unnatural to expect them to answer with exactitude the timings, without any difference of even minutes

Minor contradictions with regard to timings suggested that the Police Officials had no animosity with the accused or interest in his prosecution with mala fide, since had it been so, the minor contradictions of timings would not have happened, rather the witnesses would have enabled themselves to reply with exactitude as experienced in some other criminal cases

Circumstances established that the prosecution had successfully proved the charges against accused

Appeal against conviction was dismissed accordingly.

Prosecution case was that forty four packets of charas, total weighing 55893 grams, were recovered from the secret cavities of the truck driven by the accused

Record showed that at the time of arrest, it was the accused who was driving the vehicle and that no other person was present therein, so no ambiguity was left to hold that the accused was in full control of the vehicle and that he had the conscious knowledge and possession of the recovered substance, more particularly, when the same was recovered from its secret cavities

Right from the first day till conclusion of the trial, no one appeared to claim ownership of the vehicle, which aspect further confirmed that the vehicle was possessed at the crucial time by no other person, but the accused and it was he who was attempting to transport the contraband after concealing the same in its secret cavities

Circumstances established that the prosecution had successfully proved the charges against accused

Appeal against conviction was dismissed accordingly.

Prosecution case was that twelve packets of charas, total weighing twelve kilograms, was recovered from the secret cavities of the car driven by the accused

Seizing Officer stated in cross-examination that he had detached the fuel tank from the motorcar, while other witness stated in cross-examination that after detaching the fuel tank, it was taken through recovery memo. which was signed by him

Investigating Officer stated that neither the fuel tank was detached from the motorcar nor it was taken into possession nor in that respect there was a recovery memo. on the record

Seizing Officer of the case and Investigating Officer were different persons, however, monogram on each parcel was affixed of third person, without explanation as to whose name the said monogram was prepared and whether any official by the said name was ever posted in the police station, such divergence appearing on the face of evidence also could not be left unnoticed

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.

Prosecution case was that twelve packets of charas, total weighing twelve kilograms, was recovered from the secret cavities of the car driven by the accused

Record showed that the alleged recovery was not made from personal possession of the accused rather it was made from the fuel tank, fixed in the motorcar

Neither the vehicle was registered in the name of accused, nor there was any documents, which could show any nexus with him, nor there was any receipt through which the motorcar was given to him on rent

According to the contents of FIR, the recovery was effected from the motorcar, while report/opinion was sought by the Investigation Agency from the Motor Registering Authority/Forensic Science Laboratory with regard to motorcar through applications

No report/opinion of either of the vehicle was available and that in whose name the vehicle was registered, therefore, in view of the said discrepancy, false implication of the accused in the case by letting off the real culprits by the police could not be ruled out

Patrol-tank from which the illegal stuff was allegedly recovered was neither produced before the court nor it was exhibited to confirm as to whether it was having the capacity to contain such a huge quantity of narcotics, which aspect of the case also made the story of prosecution doubtful

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.

Prosecution case was that fifty kilograms of charas in fifty packets were recovered from secret cavities of the car of the accused persons

Record showed that the Investigating Officer and complainant were not consistent with regard to the arrival of Investigating Officer to the spot as the former admitted in his cross examination that he conducted investigation from 1600 hours till 1700 hours however, the complainant had admitted that the Investigating Officer arrived on the spot after 2230 hours

Prosecution also did not establish case against accused/front seater as none of the witnesses had uttered a single word with regard to conscious knowledge of the said accused in respect of the availability of contraband in the vehicle in question

Paramount duty of the prosecution was to lead a trust worthy evidence to enable the court to believe that the accusations made against the accused were just, trust worthy and did not create even a single doubt to bring home the charges against him/them

Circumstances established that the prosecution had been unable to prove its case against the accused beyond any shadow of doubt

Appeal against conviction was allowed, in circumstances.

Prosecution case was that fifty kilograms of charas in fifty packets were recovered from secret cavities of the car of the accused persons

According to the Forensic Science Laboratory Report the samples were received there on eighth day of recovery whereas, according to the statement of Seizing Officer, the same were separated for analysis on the day of occurrence with a delay of 08 days without any explanation

Mohrrar of the Police Station had also admitted during his cross examination that he sent the samples after a delay of about 08 days however, nothing for its sending late to the Forensic Science Laboratory had been put forward to be relied upon

Even no plausible explanation had been furnished by the Seizing Officer or by the Investigating Officer to the effect that the samples remained in safe custody from the date of registration of the FIR till its receipt in the Forensic Science Laboratory therefore, safe custody of parcels of samples had not proved by the prosecution in the case, which was mandatory requirement of the law

Statements of Seizing Officer as well as Investigating Officer were silent regarding the safe custody of the samples

Circumstances established that the prosecution had been unable to prove its case against the accused beyond any shadow of doubt

Appeal against conviction was allowed, in circumstances.

Prosecution case was that fifty kilograms of charas in fifty packets were recovered from secret cavities of the car of the accused persons

Record showed that the samples from the police station to Forensic Science Laboratory for its analysis had been handed over to Constable but neither he had been cited as witness on complete challan nor he had been examined to support the version of prosecution regarding the safe transmission of the charas to the Forensic Science Laboratory

By not producing the material witness by the prosecution, there existed no chain to prove the safe custody of the samples to the Forensic Science Laboratory

Missing chain created serious doubts in the authenticity and credibility of the Forensic Science Laboratory Report

Circumstances established that the prosecution had been unable to prove its case against the accused beyond any shadow of doubt

Appeal against conviction was allowed, in circumstances.

Prosecution case was that fifty kilograms of charas in fifty packets were recovered from secret cavities of the car of the accused persons

According to the murasila and statement of Seizing Officer, he recovered 50 packets of charas weighing 50000/-grams (50 KGs) grams from the secret cavities of the vehicle in question but he had only mentioned weighment of two packets i.e. 1000/1000 whereas, failed to mention weighment of remaining 48 packets

Circumstances established that the prosecution had been unable to prove its case against the accused beyond any shadow of doubt

Appeal against conviction was allowed, in circumstances.

Police Officials are as good witnesses as any other private witness and their evidence is subject to same standard of proof and principles of scrutiny as applicable to any other category of witnesses

In absence of any animus, infirmity or flaw in their evidence, the testimony of Police Officials could be relied upon without demur.