Possession and trafficking of narcotic

2018 PLD 823 SUPREME-COURT Judicial Precedent

S. 9(c)Juvenile Justice System Ordinance (XXII of 2000), PreamblePossession and trafficking of narcoticsReappraisal of evidenceJuvenile accused treated as an adult offenderUnreliable prosecution witnesses

Accused, who was 12 years of age at the time of the alleged offence, was driving a motorcycle rickshaw, from wherein a huge quantity of charas and heroin was recovered

Trial Court convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to life imprisonment

Admittedly, the accused was not even a teenager when the narcotic drugs were seized from the rickshaw

Questions were whether a child of such tender age could be the owner or deemed to be the owner of the huge quantity of narcotic drugs which had been seized; whether he could be the owner of the rickshaw; whether it could be accepted that he was driving the rickshaw; and whether he had the requisite understanding to know what he was doing

None of the said questions were investigated by the police

Trial Court was a Juvenile Court and as such was required to ensure that the interest of the child whose trial it was conducting was fully protected, however, it did not formulate the said questions as "points for determination" nor considered them

Trial Court treated the accused as an adult, without considering that he was a child of tender years, and presumed that he had full capacity and understanding

High Court perpetuated the error, and the Judges who heard the appeal also effectively treated the accused as an adult offender

Police arrested the accused at a picket, but he did not try to run away

Narcotics were recovered in the presence of two witnesses

One of the said witnesses denied his signature on the recovery memo, while the other disowned any knowledge of the recovery exhibit, therefore he was declared hostile

Prosecution did not seek to have their signatures sent for forensic determination

Police Inspector who had set up the picket and apprehended the accused was the complainant of the case

Complainant admitted in his cross-examination that he made no attempt to determine the ownership of the rickshaw nor sought its registration book nor wrote to the concerned motor registration authority to determine in whose name it was registered

Case of prosecution, thus, rested on the testimony of three unreliable prosecution witnesses of doubtful integrity

Apparently, it seemed that the policemen were shielding the co-accused whilst arresting and prosecuting a young boy merely because he was the brother of the co-accused

Prosecution had completely failed to establish its case against the accused, let alone having established it beyond reasonable doubt

Conviction and sentence passed by the Trial Court and maintained by the High Court were set aside and accused was acquitted of the charge

Supreme Court directed that trial of juveniles shall be concluded by juvenile courts without delay and appeals against conviction shall be prioritized and expeditiously decided; that Chief Justices of the provinces and of the Islamabad High Court through their respective Registrars shall issue necessary directions to prioritize the hearing of appeals filed by juvenile convicts and in this regard appeals by juvenile convicts shall be so highlighted on the file covers of the appeals; that requisite instructions by the Chief Justices, through their respective Registrars, should also be issued to the juvenile courts within their respective territorial jurisdictions to ensure the expeditious conclusion of trials, and that the juvenile courts shall not entertain routine requests for adjournments and if the case was to be adjourned it must only be in exceptional circumstances

Appeal was allowed accordingly.

2018 YLRN 9 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Rr. 4 & 5Control of Narcotic Substances Act (XXV of 1997), S. 9(c)Possession and trafficking of narcoticDelay in sending samplesNon-compliance of Control of Narcotic Substances (Government Analysts) Rules, 2001Effect

Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, were directory and not mandatory in nature

Mere fact that samples were sent to Forensic Science Laboratory beyond the prescribed period of 72 hours would not be fatal unless accused showed that the samples were tampered or he was otherwise prejudiced by the delay.

2018 YLR 1496 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 497Control of Narcotic Substances Act (XXV of 1997), S.9(c)Possession and trafficking of narcoticsBail, refusal ofAccused was arrested red-handed with huge quantity of 375 Kgs of heroinAccused had been booked by the prosecution as main exporter of the subject consignment and he had admitted his guiltEach of the container had been broken by the Inspector in the presence of accused

Accused had acquired the godown from prosecution witness only for storage of sanitary material and had filed undertaking regarding the goods for export

Recovery of heroin powder was witnessed by the Police Officials, they were as good witnesses as any other person, and they had no ostesible reason to falsely implicate the accused in a case of serious nature

Chemical Examiner's report of subject narcotic substance was positive, which supported the prosecution case

Case of accused was hit by prohibition contained in S.51 of Control of Narcotic Substances Act, 1997

No material had been produced to suggest that accused was falsely implicated in the alleged crime

Section 25 of Control of Narcotic Substances Act, 1997 having excluded applicability of S.103, Cr.P.C., no case of further enquiry was made out

Rule of consistency was not applicable in the case

Merely saying that accused had been implicated by Anti-Narcotic Force, was not sufficient to discard the prosecution story as being false, which was even otherwise a factual controversy and at bail stage only tentative assessment of the record was to be made

Plea that handwriting expert's report did not support the prosecution case required evidence and Trial Court seized of the matter was to look into that aspect of the case; as at bail stage that was hardly a ground of bail

Offence against accused was punishable with life imprisonment

Witnesses had supported the case against the accused

Trial of the case was at the verge of con-clusion and could be concluded within a period of two months

Accused having not made out a case for grant of bail, appli-cation for bail was dismissed, in circum-stances.

2014 YLR 892 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497Control of Narcotic Substances Act (XXV of 1997), S. 9(c)Possession and trafficking of narcoticBail, grant ofNarcotic present in boot (diggi) of vehicleConscious knowledge of passenger in vehicle of the presence of the narcoticScope

Charas weighing 19 kilograms was recovered from the boot (diggi) of a vehicle and accused was allegedly sitting on the front seat of the said vehicle, which was being driven by the co-accused

Accused was neither driver nor owner of vehicle but was alleged to be a mere passenger

Nothing was recovered from immediate possession of the accused

Neither any evidence showed that accused was in conscious knowledge of the presence of contraband in the boot (diggi) of the vehicle nor anything on record showed that he was convicted or involved in cases similar to the present one

Accused was released on bail in circumstances.

2013 PCrLJ 196 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S. 9(c)Possession and trafficking of narcoticAppreciation of evidenceDefence plea of false implication not provedPlanting of huge quantity of narcotics not probableAccused-lady was allegedly found in possession of 7 kilograms of charas after police searched her bag at a checkpointAccused was convicted and sentenced by the Trial Court

Contentions of accused were that she had been falsely implicated in the case by the police and managed official witnesses and because of lack of disinterested witnesses, no reliance could be placed on the evidence of police witnesses

Validity

Plea of false implication of accused was belied by the fact that complainant (police official) who prepared the recovery memo and recovery witness (police official) remained consistent in their statements on material particulars of the prosecution case

No material discrepancies or contradictions had been brought on record to shatter credibility of prosecution evidence

Accused was arrested on the spot along with the contraband

Report of Forensic Science Laboratory was positive

No mala fide or enmity with the police had been brought on record

Such huge quantity of contraband could not be planted by the prosecution against the accused

Accused had failed to prove her defence plea by producing evidence

Appeal was dismissed in circumstances.

2013 YLR 1617 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9(c)Possession and trafficking of narcoticBail, refusal ofAccused driving the vehicle aloneControl and possession over recovered narcoticScopeMixing the recovered narcotic before sending samplesScope

Accused was apprehended at a police barricade and upon search of his vehicle, 14 packets containing a total of 14 kilograms charas were allegedly recovered from the secret cavities of the vehicle

Contentions of accused were that packets of alleged narcotic were initially mixed together and then three samples weighing 10 grams each were sent for chemical analysis, therefore, samples sent did not represent the whole recovered consignment; that narcotic was not recovered from his personal possession but from secret cavities of the vehicle, hence he had no conscious knowledge about it, and that trial had commenced and he was no more required for further investigation

Validity

Accused was driving the car alone and was in charge of it, therefore, same was under his control and possession

Articles lying in the vehicle , in such circumstances, would also be under his control and possession

Some quantity of narcotic was separated from each of the 14 packets and then mixed up, wherefrom three samples of 10 grams each were prepared and only sample of 10 grams was sent for chemical analysis, which denoted that sample sent for analysis represented the whole lot of 14 packets

Challan was complete and trial had commenced

Bail petition of accused was dismissed, in circumstances.

2013 YLR 1244 PESHAWAR-HIGH-COURT Judicial Precedent

S. 9(c)Possession and trafficking of narcoticAppreciation of evidenceDefence plea of accused of his false implication was not provedPlanting of huge quantity of narcotic was not probableRecovery of narcotic had fully been provedAccused had produced four witnesses in support of his stance, who were closely related to co-accused

Said witnesses neither ever appeared during the investigation before the Investigating Officer nor submitted any affidavit regarding innocence of accused

Shaky statements of the defence witnesses could not be relied upon, when no documentary proof in support of the version of defence had been produced before the Trial Court

Accused himself did not appear in the witness box to substantiate his plea as described by the defence witnesses

Contraband was recovered from left rear tyres of the bus in question which was only possible, if the driver of the vehicle had himself concealed the same

Complainant in the F.I.R. had clearly mentioned the refusal of the passengers of the bus to become a marginal witness of recovery memo

Passengers who belonged to different areas, usually refuse to become witness in such like cases

Nothing was on record to suggest that prosecution witnesses had any grudge or enmity with accused

F.I.R. Number was very much available on the recovery memo

Trial Court after appreciation of evidence had rightly held that prosecution had established the recovery of contraband in the shape of opium weighing 14.400 Kgs. from the secret cavity of bus driven by accused

Prosecution witnesses though were official witnesses of Anti-narcotic Force, but in the absence of any enmity or grudge, they were as good witnesses as other public witnesses, and their testimony could not be discarded or brushed aside on the sole ground that they were members of the said Force

Witnesses remained consistent so far as time, place and mode of recovery was concerned, and their evidence was trustworthy, confidence inspiring and of unimpeachable character

Well-founded judgment of the Trial Court, needed no interference by High Court

Conviction of accused was maintained, but sentence of one year S.I. in default of payment of fine of Rs.100,000 was reduced to six months' S.I.

With such modification, appeal was dismissed.

2013 YLR 1123 PESHAWAR-HIGH-COURT Judicial Precedent

S. 9(c)Possession and trafficking of narcoticAppreciation of evidence

Defence plea of accused that he had been enroped falsely by the Police due to collusion with prosecution witness was not proved

Accused had been arrested red-handed on the spot after having been found in possession of huge quantity of charas weighing 30 Kgs. from the secret cavities of seized Motor Car being driven by accused

Prosecution had produced six witnesses before the Trial Court

Nothing was on record, or any suggestion that the Police had enroped accused due to enmity

Plea of accused did not appeal to reason

Statement of prosecution witness was confidence inspiring, straightforward and seemed to be truthful

Said witness was disinterested witness and no ground had been advanced to discard his statement

Samples of two different kinds of charas were sent to Forensic Science Laboratory, report of which was positive

Quantity of 'Pukhta' charas recovered from accused being more than 10 Kgs. accused was rightly awarded sentence

Technical ground that contraband was received by the Laboratory after 5 days of the occurrence, could not benefit the accused in view of the fact that huge quantity of the contraband and was recovered from the accused

Accused, could not be absolved from the liability of conscious knowledge of contraband

Transportation of narcotics in such a huge quantity could not be ignored

Despite some minor discrepancies and some lapses, prosecution had proved its case beyond any shadow of doubt

Trial Court, in circumstances, had rightly convicted and sentenced accused

Conviction and sentence of accused, were maintained, and appeal being devoid of force, was dismissed, in circumstances.

2013 YLR 140 PESHAWAR-HIGH-COURT Judicial Precedent

S. 9(c)Possession and trafficking of narcoticAppreciation of evidence

Accused and co-accused were apprehended at a police barricade on the basis of tip-off and 99 kilograms of charas pukhta, 48 kilograms of charas garda and 38.2 kilograms of opium was recovered from the secret cavities of the truck they were driving

Trial Court convicted and sentenced accused and co-accused under S.9(c) of Control of Narcotic Substances Act, 1997

Contentions of accused and co-accused were that they were arrested from their house and were wrongly shown by the prosecution to have been arrested from the spot, and that alleged recovery of narcotic was planted against them

Validity

Case was of two versions

Prosecution in order to prove its version produced both direct (eye-witness account) as well as circumstantial evidence

Witness of ocular account and that of recovery memo, both remained coherent and non-discrepant in all material aspects of the recovery and despite lengthy cross-examination nothing favourable could be gained from them

Recovery of narcotics was also substantiated by Forensic Science Laboratory report

Prosecution was also able to prove safe custody and transit of samples

Contention of accused and co-accused regarding their arrest from their house was bereft of logic and reason and they introduced such a story for the first time while giving their statements under S.342, Cr.P.C and on oath under S.340(2), Cr.P.C

During cross-examination defence witnesses failed to prove the defence plea raised by accused and co-accused

Police had no personal reason to involve the accused and co-accused in a false case

Prosecution had proved its case beyond any shadow of doubt but the accused and co-accused failed to discharge the burden of proving their plea of defence

Appeal was dismissed in circumstances.

2013 YLR 140 PESHAWAR-HIGH-COURT Judicial Precedent

S. 9(c)Possession and trafficking of narcoticDriver of vehicleKnowledge of narcotics lying in the vehicleScope

Driver of the vehicle had the knowledge and control over all the articles lying therein.

2013 PCrLJ 557 PESHAWAR-HIGH-COURT Judicial Precedent

S. 9(c)Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4 & 5Possession and trafficking of narcoticAppreciation of evidence

Accused were apprehended at a police picket on the basis of secret information and 175 kilograms of charas pukhta was recovered from the secret cavities of the vehicle he was driving

Trial Court convicted and sentenced accused under S.9(c) of Control of Narcotic Substances Act, 1997

Validity

Accused was driving the vehicle in question and was arrested on the spot

F.I.R. was promptly lodged

Complainant (police official) was put to lengthy cross-examination but nothing favourable to the defence was unearthed

Statement of complainant was in full consonance with the facts and contents of the F.I.R. and recovery memo

Minor contradictions in statements of prosecution witnesses (police officials) were not sufficient to vitiate the prosecution case or make recovery doubtful

Forensic Science Report confirmed that all samples sent were charas

Mere delay in sending samples to Forensic Science Laboratory was not fatal to the prosecution case because Rules 4 and 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 placed no bar on the investigation officer to send the samples beyond the 72 hours of seizure or recovery of contraband

Recovery of huge quantity of charas from secret cavities of vehicle had been proved beyond any shadow of doubt

Appeal was dismissed and conviction of accused was maintained.

2013 PCrLJ 182 PESHAWAR-HIGH-COURT Judicial Precedent

S. 9(c)Juvenile Justice System Ordinance (XXII of 2000), S. 11Possession and trafficking of narcoticAppreciation of evidenceRelease of juvenile on probationDiscretion of courtScopeConscious knowledge of narcoticScope

Accused, who was a juvenile at the time of commission of alleged offence, was forced by the police to stop at a checkpoint and after being apprehended he himself disclosed presence of 13.2 kilograms of charas in petrol tank of his vehicle

Trial Court convicted and sentenced the accused under S.9(c) of Control of Narcotic Substances Act, 1997

Validity

All witnesses consistently deposed that accused was apprehended on the spot along with his vehicle, which was under his control as he was driving the same at the relevant time

No discrepancy in statement of any witness despite being subjected to searching cross-examination

Accused had conscious knowledge of narcotics concealed in the petrol tank of his vehicle because when he was signalled to stop he tried to escape and was subsequently forced to stop by blocking the road

After arrest, accused himself disclosed presence of narcotics in the vehicle

Accused was in exclusive control of the vehicle in which narcotics were kept in secret cavity, therefore, he would be deemed to be in the exclusive possession of the charas recovered from the vehicle

Nothing on record suggested that narcotic was planted on accused or that he was falsely charged

Samples taken from the recovered substance were sent to Forensic Science Laboratory, which found them to contain charas

At time of framing of charge against accused he was aged about 17/18 years

Section 11 of Juvenile Justice System Ordinance, 2000 provided discretion to court to decide the issue of release of juvenile on probation

Not exercising such discretion or in-action in exercising such discretion would offend the dictates of law

Trial Court, in the present case, had not exercised the discretion vested in it under S.11 of Juvenile Justice System Ordinance, 2000, which surely prejudiced the accused

Appeal was partially allowed, conviction and sentence awarded to accused was maintained, however, case was remanded back to Trial Court to decide the same after providing opportunity of hearing to accused and rendering reason, regarding exercise of discretion, as provided under S.11 of Juvenile Justice System Ordinance, 2000 to release the accused on probation and the terms thereof.

2013 PCrLJ 735 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 497Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 8 & 9(c)Juvenile Justice System Ordinance (XXII of 2000), S. 7Possession and trafficking of narcoticBail, refusal ofPlea of juvenility, rejection ofSupervision and control over vehicle carrying narcoticScope

Heroin weighing 75 kilograms was allegedly found from the secret cavities of a truck in which the accused was present as a second driver

Contentions of accused were that alleged heroin was not recovered from his exclusive possession but same was recovered from the truck; that no driving licence had been secured from him by the police; that at the time of incident he was aged about 17 years and as such his case fell within the ambit of Juvenile Justice System Ordinance 2000; that although the Medical Board had opined that accused was 20 years of age but doctors of the Board had given contradictory versions in their cross-examination

Validity

Accused, who was apprehended at the spot, was one of the drivers of the truck in question and truck was under his supervision and control

No documentary proof existed regarding enmity of accused with the complainant party so as to involve him in the matter falsely

Offence alleged was punishable with death and fell within the ambit of prohibitory clause of S.497(1), Cr.P.C.

Medical Board had declared age of accused to be 20 years

Bail application of accused was dismissed, in circumstances.