Recovery of narcotics

Trial Court has to take into consideration quantum of contraband and expected quantum of punishment to be awarded while deciding bail application of the accused.

Complainant had admitted during cross-examination that no identification marks were put on the recovered articles; that total recovered charas was weighed collectively but he was contradicted by another prosecution witness and that the raiding party was accompanied by a lady constable but she was not produced before the Court

Samples were allegedly handed over to the sample-bearer on the very next day of recovery but he stated that he had taken the samples after one and a half month of the day of recovery

Prosecution had failed to prove the chain of custody

Appeal was allowed and the accused was acquitted of the charge.

Prosecution case was that 44 packets, containing 29 packets of chars and 15 packets of opium, were recovered from the secret cavity of the vehicle driven by accused

Record showed that the complainant/Investigation Officer in his cross examination stated that they made their departure and arrival back in the Police Station, but extract of daily diary was not available on the record

Complainant/Investigation Officer in his cross examination admitted that he had not placed on file the extract of the said daily diary regarding his departure and arrival back to the Police Station

It was revolving common practice amongst the Investigation Officers that they lacked interest to collect the material evidence in cases and even no heed was paid to collect the daily diaries from the Police Stations regarding the arrival and departure of all concerned with the investigation of a particular case

These documents could correctly explain the status of the witnesses, their presence at the spot, the time they consumed in reaching to the spot and the names of Police Officials who accompanied them

If such documents were brought on record, the Investigation Officer would lose the courage to manipulate the cases in Police Stations

In the present case, when the complainant/Investigation Officer was questioned regarding the arrival and departure from the Police Station to the spot, he blatantly answered that he did not place on record the daily diary in that respect

Such lack of seriousness of the witness stamped him as an interested witness and his testimony could not wholeheartedly be relied upon

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 44 packets, containing 29 packets of chars and 15 packets of opium were recovered from the secret cavity of the vehicle driven by accused

Admittedly, the recovery had been effected near Toll Plaza of a motorway but the CCTV footage had not been taken into possession

Even photographs at the time of arrest were not placed on the file which could have corroborated the testimony of Anti Narcotics Force Officials most particularly the statement of complainant/Investigation Officer

By considering the facts and circumstances of the present case it was incumbent upon the prosecution to have brought some corroborative piece of evidence in addition to the evidence referred above

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 44 packets, containing 29 packets of chars and 15 packets of opium were recovered from the secret cavity of the vehicle driven by accused

Record showed that one of the witnesses, who was the second marginal witness to the recovery memo, was abandoned by the prosecution for reasons best known to them

So, in such situation, not only adverse inference under Art. 129(g) of Qanun-e-Shahadat Order, 1984 could be safely drawn, but the legal inference could also be drawn that if the said witness had entered into the witness box then he would not have supported the prosecution case

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 44 packets, containing 29 packets of chars and 15 packets of opium, were recovered from the secret cavity of the vehicle driven by accused

Complainant/Investigation Officer appeared before the trial Court as witness

From the deposition of said witness, it was abundantly clear that he had been dismissed from service once on the allegations of asking for illegal gratification then again a month or two prior to his examination before the Court he was again arrested in another case by the FIA for receiving illegal gratification

If such was the state of credibility of the prime witness of prosecution on which they expected the Court to impose capital punishment or for that matter life imprisonment, indeed the Court would strive for some strong independent corroboration

In cases of narcotics conviction was based on the testimony of Police Officials and Police Officials were considered to be as good witnesses as any other witness

Reason was that they being member of the respectable law enforcing agencies the Court relied on their testimony and awarded capital punishment to the accused most particularly in cases wherein they had recovered considerable quantity of narcotic which of course was a manic for the society

However when a witness having a dubious record was the main prosecution witness, then how could the prosecution could expect the Court to consider his testimony and award sentence to the accused

When any doubt arise with regard to the credibility of the witnesses then the Court was left with no other choice but to discard such evidence produced by the prosecution

Even then some strong independent corroboration could be looked up but the same was not available in the present case

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 44 packets, containing 29 packets of chars and 15 packets of opium, were recovered from the secret cavity of the vehicle driven by accused

There was no extract of Register-19 and Register-21 on the record

Muharrir/witness had stated that on return of the Investigation Officer to the Police Station he handed over to him the case property and that he made its entry in Register-19

In his cross examination said witness admitted that he had not brought Register 19 or Register 21 in support of his contention before the Court

Similarly receipt Rahdari and acknowledgement receipt were also not available on the file

Prosecution did not produce Register No. 19 of the Police Station so as to prove that the case property was ever kept in Malkhana of the Police Station

In that way, the prosecution had wasted the best evidence available with it to establish the safe custody of recovered contraband

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.

Admittedly, the report must contain three ingredients i.e. the test applied, the protocols applied to carry out those test and lastly, the result thereof

If the report contained the said three ingredients then any ambiguity could be resolved by exercising the power vested in a court under the proviso to S. 510, Cr.P.C.

Report, in the present case, referred to the protocols applied and the result of the test

Said report did not mention the nature of the test applied, but a plain reading of the report, unambiguously showed that it was implicit therein that the test was conducted

Trial Court was not precluded from summoning the Government Analyst along with the existing record to tender evidence for removing the ambiguity and to give clarification

What the Government Analyst was barred from doing was to conduct a fresh test or to alter or change the report

Record could not be tampered with nor any addition could be made thereto

Section 540 of the Cr.P.C was an independent and distinct provision which empowered a Trial Court to summon a witness provided the legislative intent expressly mentioned therein was fulfilled, i.e. if it appeared to the court that summoning of the evidence was essential to the just decision of the case

Said provision was distinct from and in addition to the power contained in the proviso to S. 510 of the Cr.P.C.

Trial Court, therefore, in the present case, was empowered to consider the application and passed an order, even if one of the ingredients had been omitted from being recorded in the report

Appeal was allowed with direction to the Trial Court to decide the application afresh after affording an opportunity of hearing to the parties.

Trial Court convicted and sentenced accused to imprisonment for life but acquitted co-accused driver on grounds that accused gave an affidavit of admission of guilt to the authorities

Validity

Safe custody of recovered substance as well as safe transmission of samples of recovered substance to Forensic Science Laboratory was not established by prosecution

Complainant/Seizing Officer took into possession contraband but it was not clear as to whom he handed over the remaining contraband

Authorities prepared samples for Forensic Science Laboratory but it was not clear as to whom he handed over the case property and samples at police station

No record or assertion was available to the effect that samples and case property were ever kept in Maalkhana

Accused was in judicial custody when affidavit was scribed and also in judicial custody when affidavit was produced in court

Affidavit did not contain any stamp of jail authorities and Oath Commissioner was also not produced by prosecution to explain as to how he attested affidavit of accused when he was in judicial lockup

High Court set aside conviction and sentence awarded to accused as Trial Court erred in appreciating evidence in its true perspective and slightest doubt in case of prosecution was sufficient to grant acquittal to accused

Appeal was allowed in circumstances.

Prosecution had not produced the constable who was an eye-witness of the recovery and had taken the complaint to the police station for registration of FIR; High Court held that adverse inference could be drawn against the prosecution for withholding such a witness.

Search was to be made at spot and samples from recovered narcotics substance seized, must be drawn on spot of recovery in presence of accused persons

Mention to such effect should invariably be made in recovery memo drawn on spot.

Omission to state either result of test or protocols of test applied is a substantial omission which goes to root of existence of report 'with prescribed form'

If protocols of test are not stated in report, report should be held to be not a report 'in prescribed form' within meaning of rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 and cannot be treated as evidence of facts stated therein.

Neither weight was taken on spot of contraband substance allegedly recovered from accused persons nor any mention was made in recovery memo that in whose custody said packets of Charas remained from time of recovery till preparation of recovery memo

Investigating officer chalked out FIR with delay of 8 hours and 30 minutes

Prosecution failed to prove safe custody of narcotic substances got recovered from accused persons

Parcels of recovered Charas were not kept in safe custody and claim of prosecution that parcels of recovered Charas were not tampered with was doubtful

Patent infirmity was noticed in reports which was found to be fatal to case of prosecution

High Court declined to uphold and sustain judgment of conviction and sentence against accused persons passed by Trial Court

Accused persons deserved to be given benefit of doubt and findings in such regard were required to be set aside

Prosecution was not able to prove its case beyond all reasonable doubts against accused persons for offence under S.9(c) of Control of Narcotic Substances Act, 1997

High Court set aside conviction and sentence awarded to accused persons by Trial Court and acquitted them of charge

Appeal was allowed in circumstances.

Trial Court committed material irregularity while conducting proceedings and not affording an opportunity to accused to produce his counsel

High Court set aside judgment passed by Trial Court and remanded matter for decision after affording an opportunity to accused to cross-examine prosecution witnesses

Appeal was allowed accordingly.

Prosecution had to prove the recovery from the possession of accused and then a claim of conviction could be examined.

Accused, during investigation, led the police party to his residential room and got recovered 40 packets of charas weighing 50 kilograms

Complainant did not state in his deposition about the place where he had kept parcels of samples and the remaining case property

Mere oral statements of police officials as to recovery of charas weighing 50 kilograms did not discharge heavy burden of responsibility, which was laid on the prosecution

Moharrar deposed that he gave 40 parcels of samples to the sample-bearer for transmission to Forensic Laboratory but the sample-bearer deposed that he received 80 parcels

Prosecution could not prove safe custody of the parcels of samples drawn from the allegedly recovered substance through material and cogent evidence

Appeal against conviction was accepted, in circumstances.

Representative sample must be drawn from every packet/slab/piece of narcotic or psychotropic substance and be sent for chemical analysis.

Charas weighing 100 kilograms was allegedly recovered from a vehicle van which was being driven by one accused while the other was sitting on the sacks containing the narcotics

Appeal against acquittal had distinctive features and legal approach to deal with

Appeal against conviction was distinguishable from appeal against acquittal because presumption of double innocence was attached in the latter case

Judgment of acquittal could only be interfered with when it was found to be based on evidence as capricious, perverse, arbitrary or foolish in nature and the same was lacking against accused

High Court declined to interfere in the judgment of acquittal of accused persons as the same did not suffer from any illegality

Trial Court had advanced valid and cogent reasons for passing a finding of acquittal in favour of accused persons and there was no legal justification to disturb the same

Appeal against acquittal was dismissed in circumstances.

Accused persons were drivers of troller who were found responsible for transporting huge quantity of narcotic substance and had prior knowledge and awareness of narcotics in their vehicle

Such huge quantity of narcotics was not kept in toolbox of vehicle without prior knowledge of drivers which remained in possession and control of accused persons from their village to place of recovery

Accused persons being drivers were fully responsible for transporting such huge narcotics in troller

High Court declined to interfere in conviction and sentence awarded by Trial Court to accused persons as prosecution had succeeded to bring guilt of accused persons home and proved its case beyond any shadow of doubt

Accused persons failed to point out any material illegality or serious infirmity committed by Trial Court while passing judgment which was based on proper appreciation of evidence

Appeal was dismissed in circumstances.

Applicability of S. 103, Cr.P.C. in narcotics cases has been excluded and non-association of any private person as witness is not a serious defect to vitiate conviction

Police officials are competent witnesses and their evidence cannot be discarded only for the reason that they are police officials

Evidence of police official must be straightforward and confidence inspiring

Prosecution witnesses being police officials by itself cannot be considered a valid reason to discard their statements/evidence.

Sample parcel of the case property was received by the Chemical Examiner through Head Constable after two days of the incident without any explanation for delay

Admittedly, Head Constable had not been examined to corroborate the version of the prosecution

Record failed to show as to where the case property was lying for intervening period

No entry of Malkhana had been produced to prove the safe custody of the property

Incharge of Malkhana had also not been examined

Question of tampering in the case property in the present case could not be ruled out, in circumstances.

Prosecution case was that on receiving spy information of selling narcotics, police party reached at pointed place and apprehended the one accused and secured seven Kgs. of charas, which was lying on the ground over plastic "KATTA", remaining accused escaped

Admittedly complainant received spy information that accused were selling narcotics at bye-pass chowk, which was busy place but despite that complainant did not associate any independent person either from the place of receiving information or from the place of incident

Allegedly, accused along with co-accused was selling charas at the pointed place and when the police party reached there, they only arrested the present accused and remaining three accused escaped on seeing the police party

Police party armed with sophisticated weapons did not make efforts to follow those accused for their arrest

Nothing was on record as to whether complainant party made any positive efforts during the event for the arrest of absconding accused

Said aspect of the case created doubt about the prosecution case

Present accused had not been convicted in any criminal case

Record showed that the alleged charas was not recovered from the exclusive possession of accused

On the contrary, record showed that it was lying on the ground over "KATTA" and said fact did not appeal to prudent mind that charas was exclusively owned by the accused-appellant

Prosecution had failed to prove its case against the accused, in circumstances

Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the trial court.

Mere pendency of criminal cases against the accused did not ipso facto debar the accused for getting relief if he was otherwise entitled the relief on merits.

Record showed that evidence of the prosecution witnesses was contradictory to each other on material particulars of the case

Complainant stated in his examination-in-chief that the incident took place on 15.01.2017, whereas, the incident had taken place on 25.01.2017

Complainant had stated that the place of occurrence was a common street

Complainant further stated that mashirnama was reduced to writing by WHC of ADRC, whereas witness had stated in his evidence that mashirnama was reduced to writing by him on the dictation of complainant

Complainant further stated in his evidence that he handed over the custody of accused person, case property and police papers to SHO for further investigation

Station House Officer had stated in his cross examination that neither he visited the place of occurrence nor prepared such mashirnama and that the case property was not sent by him to the Chemical Examiner for its verification, whereas, chemical report showed that the property was sent by SHO

Such contradictions were fatal to the presecution

Appeal was allowed.

Venue of occurrence was a dwelling house of brother of accused but no search warrant was obtained from the concerned Magistrate for conducting raid at the house

Role of accused with regard to conscious possession of narcotics was not trustworthy as prosecution failed to bring any evidence to prove his connection with narcotics recovered from the spot

Only evidence against accused was that when raiding party proceeded towards house of his brother and knocked the door of the house, accused in response opened the door of that house

Except that no evidence establishing nexus of accused with narcotics was brought on record

Mere presence of accused on the spot was not sufficient to connect him with alleged narcotic substance

High Court extended benefit of doubt and acquitted the accused of the charge as Trial Court was unjustified in convicting and sentencing the accused for alleged offence

Appeal was allowed in circumstances.

Accused persons were arrested in possession of heroin in 20 packs, each weighing 1050 grams from secret cavity of their vehicle

Trial Court convicted both accused persons and sentenced one for death and other for imprisonment for life

High Court maintained conviction of both accused persons but altered death sentence into imprisonment for life

Validity

Confessional statement before judicial Magistrate, though retracted subsequently, presented formidable piece of evidence, inexorably pointed upon culpability of accused persons

Female accused made her disclosure within a small span of time soon after her arrest during her first appearance before Magistrate and male accused followed suit

Both accused after having been administered warnings and cautions, though disapprovingly on a printed format, nonetheless made statements found otherwise as voluntary, natural and truthful with relevant details compatible with salient features of case and brief interregnum had ruled out hypothesis of manipulation

Other pieces of evidence as independently sufficient to deliver home charge; forensic report confirmed lethal nature of substance recovered in a quantity that could not be possibly foisted in routine whereas, seizure of vehicle clinched the case

Supreme Court declined to interfere in exhaustive analysis of case of prosecution undertaken by two courts below which concurred in their conclusions regarding guilt of accused persons

Petition was dismissed in circumstances.

Accused was arrested with possession of multiple narcotic substances but was admitted to bail by High Court with reference to S. 497, Cr.P.C.

Validity

Provisions of S. 51 of Control of Narcotic Substances Act, 1997 ousted application of provisions of S. 497, Cr.P.C. to cases under Control of Narcotic Substances Act, 1997

Any reference to S. 497(2), Cr.P.C. by High Court while admitting accused to bail was uncalled for

Supreme Court set aside order in question as merits of the case against accused were not attended by High Court at the time of passage of the same

Supreme Court, instead of cancelling bail of accused remanded matter to High Court to attend merits of the case with observations that during the interregnum the accused shall be deemed to be on ad interim post-arrest bail which the High Court may confirm or not

Appeal was allowed accordingly.

Nothing was available on record showing that house from which recovery was effected was owned or in possession of accused

No query was either made from neighbour or from revenue authority

Prosecution failed to produce any document showing that accused was owner or in possession of house in question

Prosecution could not prove ownership or occupation of accused in respect of house from which contraband was allegedly recovered

Recovery of contraband from the house could not ipso facto be proof of guilt of accused unless conscious possession and ownership of accused was proved through confidence inspiring evidence which lacked

Prosecution failed to prove that accused was in possession and control of the house

Contraband material was sent for chemical examination after 35 days and such inordinate delay caused serious doubts in case of prosecution and raised question about safe custody of sample as well as safe transmission to Forensic Science Laboratory

Report of Forensic Science Laboratory did not contain full protocols of test applied for and was voidable of mandatory R. 6 of Control of Narcotics Substance (Government Analysis) Rules, 2001

High Court set aside conviction and sentence awarded to accused by Trial Court and accused was acquitted of charge

Appeal was allowed in circumstances.

Any person accused of spreading a deadly poison, i.e., narcotics, in any society was not type of person who could qualify for grant of discretionary relief unless such person had demonstrated that he was entitled to grant of bail in view of principles contained in S. 497(2), Cr.P.C.

Members of public were reluctant to offer themselves as witnesses in criminal cases and in such circumstances no adverse inference could be drawn against prosecution for not associating such like persons as witnesses

Members of police force were competent witnesses in eyes of law and could be credited with veracity unless it was demonstrated that they were false witnesses who had maliciously accused an innocent person of commission of offence for ulterior motives

Bail was dismissed in circumstances.

Accused was arrested by authorities who recovered 2 kilograms baked Charas from his possession while 3400 grams opium was recovered from rickshaw in which he was travelling

Recovery of two kilograms baked Charas from possession of accused and recovery of 3400 grams opium from rickshaw lacked independent corroboration

Prosecution was yet to prove conscious knowledge of accused about allegedly recovered opium

Case against accused fell within ambit of further inquiry and court while hearing an application of bail was not to keep in view maximum sentence provided by Statute but one which was likely to be entitled in facts and circumstances of case

Accused after facing investigation was already shifted to jail custody thus his further detention did not serve any useful purpose

Bail was allowed in circumstances.

To substantiate proceedings of raid, recovery of narcotics and arrest of accused persons, complainant/ investigating officer did not appear before Trial Court and such fact was fatal for prosecution and sufficient to demolish entire structure of prosecution case

Secondary evidence could be led through another witness who must remain associated with actual witness and was acquainted with his handwriting and signatures

Neither circumstances requiring to lead secondary evidence were brought on record nor witness who was produced as secondary evidence remained associated with complainant/ investigating officer and was not acquainted with his handwriting and signatures

Prosecution witness appearing as secondary evidence never worked with complainant/investigating officer and witness had not seen any document prepared by him

Prosecution failed to substantiate proceedings allegedly carried out by complainant/ investigating officer

Prosecution had alleged that complainant/investigating officer was responsible for concocting false FIRs against innocent persons who was removed from service

Such allegation of prosecution also discredited complaint against accused persons

High Court set aside conviction and sentence awarded by Trial Court to accused persons and they were acquitted of the charge

Appeal was allowed in circumstances.

Authorities, after lapse of 2 years of his examination-in-chief sought re-examination of Investigating Officer who was yet to be cross-examined

Validity

Only examination-in-chief of the said witness had been recorded and his cross-examination was not yet not undertaken, so there was no reason for re-examination of the witness

Re-examination could only be directed for explanation of matter referred to in the cross-examination and not regarding any matter deposed in the examination-in-chief

Provisions of S. 540, Cr.P.C. could not be allowed to be exercised in such a case

Appeal was dismissed in circumstances.

Copy of such report was produced in court after objection was withdrawn by accused and petitioner was convicted and sentenced by Trial Court

Validity

Withdrawal of objection by accused did not amount to waiving of right of questioning admissibility of report during evidence

No concept of waiver or estoppel existed against question of law and especially in criminal law

Such objection could be agitated as and when occasion arose

Court was to decide the case strictly in accordance with law as question of life and liberty of accused was to be decided

Prosecution had failed to bring on record original report of Forensic Science Agency through which prosecution had to confirm that alleged recovered material from appellant was contraband for seeking conviction and sentence of accused

Such report of Forensic Science Agency was neither a legal document nor it carried any sanction of law and same could not be read against accused as a piece of evidence

Trial Court was not justified in recording conviction against accused on basis of such inadmissible document

High Court set aside conviction and sentence awarded to accused awarded by Trial Court and acquitted accused

Appeal was allowed in circumstances.

Plea raised by accused was that charas was sent to Forensic Science Laboratory after seven days of recovery; that Control of Narcotic Substances (Government Analysts) Rules, 2001, described that contraband substance should have been sent to Chemical Examiner within seventy two hours of recovery and that positive report could not be relied upon on account of delay

Validity

Control of Narcotic Substances (Government Analaysts) Rules, 2001 had placed no bar on the Investigating Officer to send the samples beyond seventy two hours of the seizure

Said Rules were directory and not mandatory in nature

Failure to follow the Rules would not render the search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity and made the entire prosecution case doubtful

Delay of seven days in sending the charas to the Chemical Examiner for expert opinion could not be treated fatal for the prosecution case in absence of objection regarding the same having been tampered with or manipulated

No such allegation with the case property was on record

Appeal against conviction was dismissed in circumstances.

Accused was a police officer and plea raised by him was that recovery was violative of provisions of S. 21(2) of Control of Narcotic Substances Act, 1997

Validity

Recovery of huge quantity of narcotics was effected from office of accused

In absence of accused, his office was found locked that indicated his exclusive control over the same and availability of case property inside a locked box lying there led to a tentative inference about conscious possession of accused

Accused himself was a police official and his false implication in absence of strong animosity could not be normally expected and same was not borne out of any requirement

Alleged raid was conducted in night hours and provisions of S. 21(2) of Control of Narcotic Substances Act, 1997 in such peculiar circumstances could not be strictly pressed

Such grounds could not be taken into consideration, at bail stage for doing so would amount to a deeper appreciation of material

As a result of entry into office of accused, huge quantity of narcotics was recovered and except narcotics, nothing there was seized to even prima facie attract provisions of S. 26 of Control of Narcotic Substances Act, 1997

Bail was declined in circumstances.

Question as to whether in a case involving several convicts, the total quantity of narcotic substance recovered from their possession was to be equally distributed between them to determine the quantum of their individual sentences

Provisions of the Control of Narcotic Substances Act, 1997 did not permit the practice of equal distribution of total quantity of narcotic substance recovered from the possession of more than one convict in order to determine their individual sentences within the parameters of S.9 of the said Act

If in a case narcotic substance was recovered from the possession of more than one convict then, following the principle of their joint and collective liability, each one of them would be liable for punishment on the basis of the whole quantity of narcotic substance so recovered.

Charas weighing 135 kilograms and opium weighing 10 kilograms were recovered from accused which was packed in shape of packets weighing 1 kilogram each

Trial Court convicted the accused and sentenced him to imprisonment for life

Validity

No separate samples taken from each packet recovered from accused were sent for chemical analysis rather only one parcel of 1350 grams Charas and 1 parcel of 100 grams opium in amalgamated form were prepared

Chemical Examiner's Report regarding Charas and opium, showed that one consolidated sample of Charas and one consolidated sample of opium was tested

Only one packet of Charas weighing 1350 grams out of 135 packets and one packet of opium weighing 100 grams out of 10 packets could be considered against accused

Imprisonment for 4 years 6 months upon recovery of Charas exceeding 1 kilograms upto to 2 kilograms and fine of Rs. 20,000 while simple imprisonment for 1 year and 8 months upon recovery of opium upto 1000 grams and fine of Rs.7000 was reflected in the Schedule provided in Ghulam Murtaza's case PLD 2009 Lah. 362

High Court took the lenient view and reduced the imprisonment for life to already undergone by accused

Appeal was dismissed accordingly.

Accused persons could only be punished for contravention of Ss. 6, 7 & 8 under S. 9 of Control of Narcotic Substances Ordinance, 1997, on the basis of quantity of narcotic drug, psychotropic substance or controlled substance

Neither prosecution nor Trial Court was sure about actual quantity of alleged recovered substance on the basis of which culpability of accused persons was determined

None of the documents or reports tendered in evidence were even put to accused persons in their statements under S. 342, Cr.P.C.

Alleged statements of witnesses and accused recorded under S. 164, Cr.P.C., were also not placed before accused persons when they were examined under S. 342, Cr.P.C.

Though in terms of S. 29 of Control of Narcotic Substances Act, 1997, some departure to general principle was introduced but even in presence of such provision of law, the prosecution could not be absolved from its initial liability to discharge onus of proof

Initial onus of proof was always upon prosecution and once it was discharged, then the accused would be burdened to prove contrary in terms of principles laid down in S. 29 of Control of Narcotic Substances Act, 1997

Prosecution had failed to bring home guilt of accused and its case suffered coherent defects and the evidence was full of doubts

High Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge

Appeal was allowed in circumstances.

Sufficient incriminating evidence/material existed on record to show presence and connectivity of accused with alleged crime

Accused was involved in yet another criminal case of similar nature

Offence with which accused was charged was heinous in its nature which squarely fell within the four corners of the prohibition as contemplated by S. 51 of Control of Narcotic Substances Act, 1997

High Court declined to exercise discretion in favour of accused

Bail was declined in circumstances.

During investigation police arrested three accused two were travelling in the car while the third was alleged to be the person who had hired the vehicle

Trial Court convicted two accused and sentenced to imprisonment for life while the third who was travelling on passenger seat was acquitted as he was blind

Validity

Narcotics was recovered from conscious possession of accused driver of vehicle, which had been proved by prosecution beyond any reasonable doubt through cogent, reliable and convincing evidence

No mala fide or ill will of police officials existed against accused

Police witnesses in such like circumstances were as good witnesses as any other private person

Single dent in prosecution case was sufficient ground for acquittal of any accused

Standard of proof against accused facing charges under offence carrying capital punishment should have been above board, cogent and reliable

No person could be held responsible and convicted on uncorroborated circumstantial/shaky evidence

Prosecution did not succeed in bringing home the guilt of accused beyond reasonable doubt and benefit of the same was extended to accused who had hired the vehicle

High Court maintained conviction and sentence awarded to driver of the vehicle while accused who alleged to have hired the vehicle was acquitted of the charge

Appeal was allowed accordingly.

Accused was found in possession of Charas weighing 4 kilogram which was wraped in three packets and in a sack Garda Charas was also recovered

Accused was apprehended at the spot red handed and prosecution witnesses fully supported version of prosecution

Effect

Recovery of Charas at the spot was fully proved and Chemical Examiner Report was also positive

High Court did not find it appropriate to have deeper appreciation at such stage

Accused was convicted under S. 9(c) of Control of Narcotic Substances Act, 1997, after regular trial and Trial Court came to the conclusion that prosecution had proved its case beyond reasonable doubt

High Court declined to suspend the sentence awarded to accused by Trial Court

Petition was dismissed in circumstances.

Charas weighing 1000 grams was recovered from accused who was convicted by Trial Court under S. 9(c) of Control of Narcotic Substances Act, 1997, and was sentenced to five years imprisonment

Plea raised by accused was that delay in sending Charas to Chemical Analyser was intentional and there was tampering with case property

Validity

Prosecution failed to explain such delay in sending case property to Chemical Analyser, as per R.4(2) of Control of Narcotic Substances (Government Analysts) Rules 2001, such exercise was to be completed within seventy two hours of recovery

Positive chemical report would not improve prosecution case in such circumstances

Narcotic substance allegedly recovered was 1000 grams and the offence fell under S. 9(b) and not S.9(c) of Control of Narcotic Substances Act, 1997

Trial Court without applying judicial mind framed charge against accused under S.9(c) of Control of Narcotic Substances Act, 1997, and also convicted and sentenced him under S. 9(c) of Control of Narcotic Substances Act, 1997

Courts were not to act mechanically nor to conduct trial in a mechanical manner

Private persons were available around place of recovery at the relevant time but they were not associated by complainant/investigating officer in recovery proceedings, therefore, independent corroboration was essential

Prosecution failed to prove its case against accused by bringing trustworthy convincing and coherent evidence for the purpose of awarding conviction to accused

Trial Court had recorded conviction without legal evidence and High Court extended benefit of doubt in favour of accused

High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge

Appeal was allowed in circumstances.

Charas weighing 306 kilograms was recovered from vehicle driven by accused and Trial Court convicted and sentenced him to imprisonment for life

Plea raised by accused was that F.I.R. and statements of prosecution witnesses were recorded with a delay of 7 hours

Validity

Authorities apprehended accused along with contraband Charas on 5-5-2011 at about 3-00 a.m. and due to odd hours of night, it was not possible to proceed towards police station, therefore, F.I.R. was lodged at 8-00 a.m. on 5-5-2011

Time of few hours elapsed due to practical difficulties, even otherwise mere delay in lodging F.I.R. was not fatal nor due to such delay prosecution derived any undue advantage

Statements of prosecution witnesses were worthy of credence and there was no occasion to disbelieve them

Variation in statements of witnesses, which were neither material nor serious enough to affect case of prosecution, were of no avail

Statements of witnesses had to be read as a whole and Court should not pick up sentences in isolation from entire statement ignoring its proper course

Judgment passed by Trial Court was well-founded and High Court maintained conviction and sentence awarded by Trial Court to accused

Appeal was dismissed in circumstances.

Whole prosecution evidence was silent on such issue and not a single witness uttered a word as to how he came to identify accused or with regard to the effect as to the source of identification

Prosecution witnesses stated that prior to the time of raid they did not know accused and had not met him, rather he was stranger to accused

Mukhber/spy was not present at the spot at the time of raid

Truck alleged to have been recovered was not in working condition and there was no evidence to link accused with the truck in any manner

Prosecution failed to prove the charge against accused and High Court set aside the conviction and sentence awarded by Trial Court and accused was acquitted of the charge

Appeal was allowed in circumstances.

Accused in a futile attempt tried to make out a case by saying that nothing was recovered from the truck driven by them or they did not know about presence of contraband in truck in question and they had been falsely charged in the case

Accused, neither opted to produce defence witness nor desired to depose on oath in support of their contentions which fact too proved their guilt

Charge against accused was proved beyond any shadow of doubt and Trial Court had rightly convicted and sentenced the accused

Findings of Trial Court were free from any infirmity and were not open to any interference

Appeal was dismissed in circumstances.

Charas weighing 20 kilogram was recovered from truck being driven by accused and he was sentenced to imprisonment for life

Plea raised by accused was that during recovery proceedings, no witness from public was associated and only police officials were witnesses

Validity

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

Police officials were competent witnesses and their statement could not be discarded merely for the reason that they belonged to police department

Accused was involved in the offence and conclusion drawn and reasons advanced by Trial Court showed fair evaluation of evidence which was in accordance with settled principles of criminal justice

High Court did not find any illegality or infirmity in judgment warranting interference, and sentence was maintained

Appeal was dismissed in circumstances.

Nothing was available on record to show that quantity of substance recovered was exaggerated or that all packets recovered from vehicle were not proved to have been of substance other than narcotics

Discrepancies or contradictions, if any, in statements of prosecution witnesses, highlighted by accused were not of a nature as could negate recovery resulting into dislodging entire prosecution version

Absence of any motive on the part of prosecution witnesses would further negate possibility of false implication

Onus to prove defence plea, under S.29 of Control of Narcotic Substances Act, 1997, was on the accused to have led evidence in support of his innocence regarding lack of knowledge that he was ignorant about presence of any narcotics in vehicle in question and to such effect his statement recorded under S.342, Cr.P.C. could be quoted wherein he refused to produce any defence evidence in support of his innocence

Accused being driver of motor car in question was presumed to be in control of the vehicle about which he had complete knowledge even presence of anything in it

Question of ignorance regarding presence of any contraband in the vehicle did not arise

Charge against accused was proved beyond any shadow of doubt and Trial Court had rightly convicted and sentenced him

Findings of Trial Court were free from any infirmity and were not open to any interference

Appeal was dismissed in circumstances.

Although prosecution sought to corroborate testimony of recovery witnesses with report of Forensic Science Laboratory to the effect that contraband item recovered from secret cavities was Charas, yet sanctity of report of Laboratory was eroded by evidence of official who could not correctly reply as to where samples remained between the dates when those were allegedly taken into possession from car and the date those were received by Forensic Science Laboratory

Official witness even could not tell the date as to when samples were sent for examination and which official had taken samples to the Laboratory

Case property, the spare wheel of car, was never produced during trial to verify as to whether it could contain such a huge quantity of narcotics in question

Element of doubt surrounding prosecution case led court to hold that prosecution had failed to prove its case beyond reasonable doubt to sustain conviction

Supreme Court set aside the conviction and sentence awarded to accused by the courts below and he was acquitted of the charge

Appeal was allowed.

Accused contended that Chars weighing 4 kilograms was recovered from path and not from his personal possession, therefore, there was no possibility of maximum sentence provided for the offence

Validity

Court while hearing petition for bail was not to keep in view the maximum sentence provided by statute but the one which was likely to be entailed in the facts and circumstances of the case

Accused had been in jail for three months, yet commencement of his trial let alone its conclusion was not in sight, had also tilted scales of justice in favour of bail rather than jail

Involvement of accused in two other cases of similar nature would not come in the way of petitioner, so long as there was nothing on the record to show that accused had been convicted in any one of those

Petition for leave to appeal was converted into appeal and accused was released on bail.

If no sample is taken from any particular packet/cake/slab or if different samples taken from different packets/cake/slab are not kept separately for their separate analysis by Chemical Examiner, then the sample would not be a representative sample and it would be unsafe to rely on mere word of mouth of the prosecution witnesses regarding the substance of which no sample has been taken or tested being narcotic substance

At least in some situations Control of Narcotic Substances Act, 1997, stipulates disproportionately long and harsh sentences and, therefore, for the purposes of safe administration of criminal justice, some minimum standards of safety are to be laid down so as to strike a balance between prosecution and defence and to obviate chances of miscarriage of justice on account of exaggeration by investigating agency

Such minimum standards of safety are even otherwise necessary for safeguarding Fundamental Rights of citizens regarding life and liberty which could not be left at the mercy of verbal assertions of police officers which assertions are not supported by independent evidence provided by Chemical Examiner

Where any narcotics substance is allegedly recovered while contained in different packets, wrappers or container of any kind or in the shape of separate cakes, slabs or any other individual and separate physical form it is necessary that a separate sample is to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical analysis and if that is not done then only that quantity of narcotic substance is to be considered against accused person from which a sample was taken and tested with positive results.