Recovery of narcotic substance

Held: Report of Forensic Science Laboratory reflected that collective analysis of twenty parcels of opium and three parcels of chars was done

Neither the samples were tested separately nor individual report of each sample was prepared

This was violative of the principles laid down by Supreme Court

Collective forensic report not only reduced credibility of chemical examination but also had raised serious doubts regarding representative nature of samples sent for chemical analysis

Recovered substance was sealed with a monogram reading as "MN", unrelated to any officer or witness involved in the case, and such fact remained unexplained by prosecution

There were serious procedural violations, absence of credible forensic evidence and dents in prosecution's case

Supreme Court set aside conviction and sentence awarded to accused and he was acquitted of the charge, as prosecution was not able to prove its case against accused beyond a shadow of doubt

Appeal was allowed.

Accused was convicted for recovery of 1400 grams of charas from his possession and was sentenced to imprisonment for ten years

Validity

Prosecution failed to prove its case against accused beyond reasonable doubt

Chain of custody remained unverified, and prosecution did not conclusively establish safe transmission of recovered contraband

Contradictions in handling of case property and failure to produce key witnesses responsible for its movement further weakened the prosecution's case

Where any link in chain of evidence remains doubtful, the benefit thereof must accrue to accused

Prosecution was under a bounded duty to establish each stage of recovery, storage, and transmission of case property with unimpeachable certainty, and its failure to do so had rendered the conviction unsustainable

Supreme Court set aside conviction and sentence imposed on accused by two Courts below and he was acquitted of the charge

Appeal was allowed.

Report of Chemical Examiner Forensic Science Laboratory revealed that two tests were performed by the Forensic Science Laboratory, i.e., Fast Blue B Salt Test and Thin Layer Chromatograph ("TLC") Test

Forensic Science Laboratory had albeit rightly considered the Fast Blue B Salt Test as presumptive test, but had wrongly construed the TLC as a confirmative test, which was in contravention of UNODC guidelines and recommendations

Supreme Court had strictly directed the Federal Government and the respective Provincial Governments to ensure that the Government Analysts in the Narcotics Testing Laboratories were qualified as per R.3 of the Rules of 2001, who shall follow the protocols of tests as per international guidelines and in case of failure, disciplinary action be taken against the said officials

Admittedly, not only Fast Blue B Salt was a presumptive test, but the TLC was also presumptive test, but Forensic Science Laboratory had wrongly considered it as a confirmatory test, which was in utter violation of the UNODC Manual and the dicta laid down by the Supreme Court, thus no conviction could be recorded, while relying upon such Forensic Science Laboratory Report

Appeal against conviction was allowed, in circumstances.

Accused was alleged to have possessed 542 grams of heroin, who raised the plea that his case did not fall within the prohibitory clause of S.497 (1) Cr.P.C.

Validity

Bail in criminal cases registered under Control of Narcotic Substances Act, 1997 has to be decided in light of S.51(1) of Control of Narcotic Substances Act, 1997 read with S.497 Cr.P.C.

If a provision of Control of Narcotic Substances Act, 1997 provides for maximum punishment of ten years and more, it attracts the prohibitory clause of S.497(1) Cr.P.C.

Applicability of term "borderline case" was developed in the context of erstwhile provisions of S.9(c) of Control of Narcotic Substances Act, 1997

This amounts to anticipating possible period of conviction at bail stage, which exercise is not permissible while making tentative assessment of a criminal case at bail stage

Court is not barred in adjudicating a bail petition to decide the same in light of peculiar facts and circumstances of a particular case

Full Bench of High Court directed accused to approach Trial Court of competent jurisdiction as the matter had already been transferred to a Court falling in the jurisdiction of another High Court

Application was disposed of accordingly.

Charas weighing 15,000 grams was recovered from accused, who was convicted by Trial Court and sentenced to imprisonment for life

Validity

In Forensic Science Laboratory report criteria laid down in R. 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001, was complied with and guidelines given by the Supreme Court were also followed

Non-mentioning of detail of protocol in FSL report was without merit as during trial no objection in such regard was taken

Provision of S. 510, Cr.P.C., could have been invoked by accused in such context but no effort was made

Compliance of S. 21 of Control of Narcotic Substances Act, 1997, was not mandatory rather directory and omission in such regard could entail disciplinary proceedings or penal action against delinquent officer but did not affect admissibility of recovered substance

Trial Court correctly appreciated prosecution evidence and no illegality or irregularity was found which could cause any dent in prosecution case

High Court declined to interfere in conviction and sentence awarded to accused, as prosecution evidence was consistent and not shaken despite lengthy cross-examination

Appeal against conviction was dismissed, in circumstances.

In narcotic cases it is the duty of prosecution to establish seizure of contraband, taking of samples from recovered stuff, their safe transmission from the spot to police station, then from police station to Forensic Science Laboratory and safe custody of remaining contraband

Police official who brought "Murasila" from the spot to police station was not produced before Trial Court

Seizing officer did not utter a single word that as to whom he handed over the parcels of separated samples of contraband

Unbroken chain of custody of samples was not established by prosecution

Alleged parcels of samples did not bear monogram of abbreviation of seizing officer rather it bore abbreviation of name of investigating officer

Prosecution failed to prove that as to who separated samples from recovered stuff and that as to who had dispatched or taken the samples to police station

Such failure of prosecution was fatal for their case

High Court set aside conviction and sentence awarded to accused persons as prosecution failed to prove its case against them beyond reasonable doubt and acquitted them of the charge

Appeal was allowed, in circumstances.

Accused was alleged to have been arrested on the spot and from his possession Chars weighing 6 kilograms and opium weighing 4 kilograms were recovered

Trial Court acquitted accused of the charge

Validity

Neither quantity of each packet was according to the reported quantity, nor opium was proved to be narcotic substance

No sample was separated from Chars as all alleged packets were intact

Strong presumption existed that fake and fabricated case was foisted against accused

Forensic Science Laboratory authorities received sample after an unexplained delay of five days

Name of police official who took the sample parcels to Forensic Science Laboratory was not mentioned, and no receipt was issued regarding receiving of sample parcels

Signature of Chemical Examiner was missing from the report, which had given the impression of a dubious report and rendered the same totally unreliable

High Court declined to interfere in the judgment of acquittal as Trial Court had correctly appreciated record and rightly discarded prosecution story and acquitted the accused

Appeal was dismissed, in circumstances.

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

Such chain of custody was to be safe and secure, as Report of Chemical Examiner enjoyed very critical and pivotal importance under Control of Narcotic Substances Act, 1997

Chain of custody ensured that correct representative samples had reached office of Chemical Examiner

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

Prosecution failed to prove that Charas was in safe custody for relevant period

Even positive report of Chemical Examiner would not prove case of prosecution

Not necessary that there should many circumstances creating doubts

If there was a single circumstance, which had created reasonable doubt in a prudent mind about guilt of accused, then the accused was entitled to the benefit, not as a matter of grace and concession but as a matter of right

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

Appeal was allowed in circumstances.

Contraband material was dispatched to laboratory two days after its recovery but no explanation whatsoever was furnished by prosecution that where material was kept for the intervening period

Such fact led to adverse inference against prosecution about safe custody of Charas

All three improbabilities rendered entire claim of police party doubtful

When chain of custody was broken, report of chemical examiner had lost its sanctity and could not be relied upon safely to convict accused

Accused person is presumed to be innocent unless and unless he is proved guilty beyond reasonable doubt

Such presumption of innocence continues until prosecution has succeeded in proving charge against accused beyond reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence

High Court set aside conviction and sentence awarded to accused as prosecution failed to establish guilt against him beyond shadow of doubt and he was acquitted of the charge

Appeal was allowed, in circumstances.

Plea raised by accused persons was that recovery of narcotic substance was not proved as no witness from public was associated with proceedings

Accused further contended that they were kept in illegal confinement before registration of criminal case against them

Validity

Reluctance of general public to become a witness in such cases has become a judicially recognized fact

There was no way out but to consider statement of official witnesses as no legal bar or restriction was imposed in such regard

No direct enmity or ill will was suggested by accused persons against complainant or any of the officials who participated in recovery proceedings during cross-examination

Police officials were good witnesses and could be relied upon if their testimony remained un-shattered during their cross-examination

Provision of S. 25 of Control of Narcotic Substances Act, 1997, provided exclusion of S. 103, Cr.P.C., during recovery proceedings

It was difficult to believe that four persons were arrested and were kept in wrongful confinement but no one from their relatives had made any complaint nor tried to rescue them or tried to get them released

Prosecution had successfully proved the case against accused persons beyond reasonable doubt, in circumstances

By flux of time in the cases of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country, if the case is otherwise proved

Approach of the Court should be dynamic and pragmatic in appreciating facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases

No drug peddler should be acquitted in narcotics case on technicalities

Prosecution proved its case against accused persons beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence in the shape of oral/direct and documentary evidence corroborated by report of chemical examiner

High Court maintained conviction and sentence awarded to accused persons as judgment passed by Trial Court did not suffer from any illegality, gross irregularities or infirmities

Appeal against conviction was dismissed, in circumstances.

Charas weighing 1500 grams in total was recovered from accused who was convicted by Trial Court and sentenced to imprisonment for three years

Validity

Safe custody of Charas after its recovery was not established by cogent and confidence inspiring evidence

Departure entry was produced in evidence but there was also overwriting in that entry without explanation

No evidence was on record to the effect that sample was taken from each slab of Charas recovered from possession of accused, so also from cavity of Motorcycle for chemical analysis

Such was also not clear that how many grams were taken from each piece of Charas

Mere word of official was not sufficient to hold accused guilty of an offence without independent corroboration, which was lacking

Not necessary that there should be many circumstances creating doubts

If there was a single circumstance, which had created reasonable doubt in a prudent mind about guilt of accused, then accused was entitled to the benefit not as a matter of grace and concession but as a matter of right

High Court extended benefit of doubt to accused, set aside conviction awarded to him as prosecution failed to prove its case against him beyond reasonable shadow of doubt and was acquitted of the charge

Appeal was allowed in circumstances.

Plea raised by accused was that investigating officer was biased against him which resulted in registration of present case

Validity

Right from the recovery till deposit in NIH Laboratory Islamabad, chain of safe transmission of narcotic samples and custody was established without any doubt

Contraband was recovered on 4.7.2020 and within two days deposited in NIH Laboratory on 6.7.2020 and during intervening period it remained in safe custody

In order to substantiate alleged biasness of investigating officer, not a single question was put to any of the prosecution witnesses that accused apprehended from the place as pleaded or was kept in illegal confinement along with two others

In absence of statement of accused in terms of S. 340(2), Cr.P.C. and any defense evidence, plea taken by accused was nothing but a bald statement

Prosecution successfully proved its case beyond any shadow of doubt, in circumstances

High Court declined to interfere in conviction and sentence awarded by Trial Court to accused as recovery of huge quantity of narcotics; happening of occurrence; separating samples from each packets in prescribed manner; sending the same to NIH Laboratory without any break in chain; and reports of NIH Laboratory confirmed nature of contraband as heroin

Appeal was dismissed, in circumstances.

Charas weighing 2100 grams was recovered from accused who was convicted by Trial Court and sentenced to imprisonment for 3 years

Validity

When prosecution was able to prove its case on its salient features, then unnecessary technicalities should not be allowed to hamper the very purpose of law on the subject

Recovery of huge quantity of narcotic, separating the samples from each packet in a prescribed manner and sending them to chemical examiner, report of chemical examiner and statements of prosecution witnesses left no room to come to a different conclusion what had been arrived at by Trial Court

Accused failed to extract any material discrepancies or contradictions from statements of prosecution witnesses

High Court declined to interfere in conviction and sentence passed by Trial Court as prosecution had successfully proved its case against accused beyond any shadow of reasonable doubt

Appeal was dismissed, in circumstances.

Charas Garda 14000 grams was allegedly recovered from accused who was convicted by Trial Court and sentenced to imprisonment for life

Validity

Chain of custody was pivotal as entire construction of Control of Narcotic Substances Act, 1997 and Control of Narcotic Substances (Government Analysts), Rules, 2001 rested on report of Government Analyst

Report in turn rested on process of sampling, and its safe and secure custody and transmission to laboratory

Prosecution was to establish that chain of custody was unbroken, unsuspicious, indubitable safe and secure

Any break in chain of custody or lapse in control of possession of sample, cast doubts on safe custody and safe transmission of sample(s) and had impaired and vitiated conclusiveness and reliability of report of Government Analyst

Prosecution failed to prove its case against accused persons beyond reasonable doubt

High Court set aside conviction and sentenced awarded to accused persons by giving them benefit of doubt and acquitted them of the charge

Appeal was allowed, in circumstances.

According to prosecution version, the complainant handed over the case property to a constable, who was not produced as a witness during the course of trial

Said constable was neither cited as a witness in the calendar of witnesses nor his statement was recorded during the course of trial

Safe custody of the case property in that case had been compromised

Prosecution was under bounden duty to establish every limb of safe custody of the recovered contraband

In case it was not established beyond doubt, the same could not be used against the accused

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

Appeal against conviction was allowed, in circumstances.

Prosecution case was that twenty five bags of bhang weighing one maund each was recovered from the possession of the accused persons

As per fard biyan/complaint that allegedly 25-bags of bhang were recovered from the possession of the accused persons and the same were taken into possession by complainant in presence of two recovery witnesses vide recovery memo

Recovery witness during cross-examination stated that the alleged bhang was not recovered from the exclusive possession of any of the accused

Similarly, other recovery witness stated that as the accused present in the court were present besides the Boras therefore, he presumed that they were the owners of those Boras

Informer did not point out the place of occurrence

From the perusal of the said portions of statements of recovery witnesses, it had been crystal clear that the alleged 25-bags of bhang were not recovered from the sole possession of the accused persons rather the same were lying on the bank of the road and recovered from there, which was an open place and accessible to everyone

Complainant deposed before the court that bhang was not recovered from exclusive possession of accused but was recovered from all the persons present in the court

Prosecution could not produce any witness to prove that said bhang was brought by present accused at alleged place of recovery, when brought and from whom brought

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

Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Prosecution case was that twenty five bags of bhang weighing one maund each was recovered from the possession of the accused persons

Record showed that the bhang was sent to the Forensic Science Agency with the delay of about seven months

No explanation whatsoever had been given by the prosecution

Although rule in that regard was directory yet in peculiar facts and circumstances of the case, said delay raised eyebrows

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

Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

While passing order in question, Trial Court failed to take notice of such considerations and fell in error, while dismissing application filed by accused

Prosecution witnesses were members of raiding party who admitted that telephone numbers were in their personal use

Production of Call Data Record of mobile numbers would help the Court to arrive at just decision

High Court directed Trial Court to summon Call Data Record as desired by accused

Appeal was allowed in circumstances.

High Court declined to accept explanation given by investigating officer that independent persons were available but they were not willing to give evidence as it was no excuse for excluding such persons without legal justification

Justice was not to be done only in Courts

Other persons entrusted with powers were also responsible to do justice at their level

Responsible officer of Anti-Narcotic Force, invested with powers of investigation was also obliged in law to do justice and conduct fair trial and independent investigation

Prosecution failed to prove that Charas was in safe custody for the period and positive report of Chemical Examiner could not prove case of prosecution

Reasonable doubts existed in the case of prosecution, it was not necessary that there should many circumstances creating doubts

If there was a single circumstance which had created reasonable doubt in a prudent mind about guilt of accused, then accused was entitled to the benefit as not a matter of grace and concession but as a matter of right

High Court set aside conviction and sentence awarded to accused and acquitted him of the charge as prosecution failed to prove its case

Appeal was allowed, in circumstances.

Chemical Examiner did not state in his report that from total 3500 grams of Charas (Gardah) how much Charas in purified condition could have been extracted

Such lapse on the part of Chemical Examiner could not be ignored lightly and benefit of such doubt was to be given to accused as a matter of right

High Court maintained conviction awarded to accused by Trial Court but sentence was reduced from five years to two years imprisonment

Appeal was dismissed accordingly.

Chars weighing 2 kilograms and heroin weighing 100 grams were recovered from beneath the driving seat of vehicle which was being driven by accused

Effect

Driver could not be absolved from the liability, if contraband was transported in the vehicle being driven by him

High Court declined to grant bail on merit lest it could cause prejudice to other side

On tentative assessment of record there existed prima facie case against accused

Bail was refused, in circumstances.

Charas weighing 2 kilograms and heroin weighing 100 grams were recovered from beneath the driving seat of vehicle in which accused was sitting on front

Effect

When accused was arrested he was not driving the car nor any narcotics was recovered from his exclusive possession rather he was sitting on the front seat of the car

Case of accused was one of further inquiry

Bail was allowed, in circumstances.

Samples were drawn and sealed at the spot but were sent to laboratory on 20.12.2017 after unexplained delay of five days

Such exercise was to be completed within seventy two hours of the recovery as per R.4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001

Prosecution failed to explain such inordinate delay caused in completion of such exercise by Investigating Officer

Case properties i.e. heroin and Charas were not put to accused at all at the time of recording of statement of accused under S. 342, Cr.P.C., which was fatal to prosecution case

If a piece of evidence or a circumstance was not put to an accused at the time of recording of his statement under S. 342, Cr.P.C. the same could not be considered against him for the purposes of recording his conviction

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

Appeal was allowed in circumstances.

Samples ought to have been sent for analysis to the Chemical Examiner within 72 hours of the seizure as required by R. 4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001

Samples were sent for analysis after a delay of 20 days

Investigating officer failed to tender any plausible explanation for the delay in sending the samples for analysis

Safe custody of contraband for a period of 20 days was not established on record

Delay in sending the samples to Forensic Science Laboratory rendered the analysis report as doubtful

Naib Tehsildar who had sent the samples for analysis to Forensic Science Laboratory was not produced before the trial court to ascertain as to when the samples were delivered to him for its onward transmission and during the intervening period whether the same was in the safe custody, as such the safe custody and safe transmission of the contraband was not proved

Prosecution failed to establish that appellants were owner or possessor of vehicle from which contraband was recovered

Judgment passed by trial court was set aside and appellants were acquitted of the charge, in circumstances.

Charas packed in 226 packets, each packet contained 3 or 5 slabs, total weighing 285 kilograms was alleged to be recovered from accused

Samples from one slab each from all packets was taken and sent to Chemical Examiner and the same was declared as narcotic substance

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

Validity

Entire quantity of recovered substance was said to have weighed 285 kilograms but as the samples for chemical examination were not taken from each of the slab contained in 226 packets and as each of the slab was not separately weighed, therefore, it could not be assumed that the entire 285 kilograms of the recovery was narcotic substance

Sample taken from one slab in each of the 226 packets could not be considered to be a 'representative sample' of all 3 or 5 slabs contained in each of the 226 packets

Slabs from which samples were not taken could not be considered as narcotic substance as sentence under Control of Narcotic Substances Act, 1997, depended on the quantity of recovered narcotic substance

Quantity of Charas recovered from the possession of accused did not exceed 10 kilograms, therefore, he could not be sentenced to undergo imprisonment for life

Accused had been behind the bars for more than 5½ years

High Court maintained the conviction but reduced to the sentence to one already undergone

Appeal was dismissed accordingly.

Right of appeal in a case of recovery of narcotic substance was squarely governed by the provisions of S. 48 of the Control of Narcotic Substances Act, 1997

Section 48 of the said Act catered for all kinds of challenges made to a judgment or order of a Trial Court through an appeal and unlike its counterparts in the Customs Act, 1969 and the Code of Criminal Procedure, 1898, no restriction had been placed therein as to which person or authority could file an appeal

Present case was a State case, the State had prosecuted the accused persons before the Trial Court and it was none other than the State itself which had filed an appeal before the High Court against acquittal of the accused persons recorded by the trial court

Apart from that the FIR had been lodged in the present case by the office of the Directorate-General of Intelligence and Investigation, Federal Board of Revenue, which was the complainant in the case and the appeal filed by the State before the High Court was through such complainant

Provisions of S.48 of the Control of Narcotic Substances Act, 1997 placed no restriction on the State or the complainant vis-a-vis filing of an appeal before the High Court

High Court in the present case unnecessarily considered the provisions of the Customs Act, 1969 or the Code of Criminal Procedure, 1898 when the provisions of S. 48 of the Control of Narcotic Substances Act, 1997 were very clear and were the only provisions governing the subject of appeal in such a case

Case was remanded to the High Court with the direction to entertain the appeal filed before it as having been competently filed

Appeal was allowed accordingly.

Applicability of S.103, Cr.P.C. had been specifically ousted to recovery proceedings under S.25 of Control of Narcotic Substances Act, 1997

Alleged recovery was witnessed by police officials who fully corroborated the same in terms of their statements recorded under S.161 Cr.P.C.

Only tentative assessment was to be made and deeper appreciation was not warranted/ permissible at bail stage

Sufficient material was available on record to connect accused with alleged crime and provisions of S.51 of Control of Narcotic Substances Act, 1997, were attracted

Accused lady did not deserve any leniency as no such distinction was provided under Control of Narcotic Substances Act, 1997, and being female she could not claim any immunity on the basis of gender

Bail was refused in circumstances.

Police had transmitted seven parcels of contraband, out of which six parcels contained forty packets, while one parcel contained thirty five packets and each packet in the parcels weighed 1-kg

Samples were not drawn from each packet

Non-drawing of samples from each packet separately for chemical analysis clearly indicated the negligence of the Chemical Examiner, which was not in any manner advantageous for the prosecution case.

Investigating Officer had failed to investigate the actual owner of the vehicle in order to substantiate the allegation that contraband was being smuggled by the accused or was being transported at the behest of the owner of the vehicle or that the vehicle was disposed of by its owner

Mere presence of the accused in the vehicle was not enough to hold him responsible for the recovered contraband as the recovery of contraband was not effected on the pointation of the accused

Prosecution had failed to prove the conscious possession of knowledge of the accused about the contraband concealed in the secret cavities of the vehicle

Accused was acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

Charas in three packets was allegedly recovered from possession of accused but only a "small" and unspecified quantity was taken from every packet as a sample and were mixed up and made into one sample of 20 grams which was sent to Chemical Examiner for analysis

As to from which packet the substance was taken for analysis could not be ascertained

Such circumstances cast serious doubt about the veracity of prosecution case, benefit of which would resolve in favour of accused

Appeal was allowed and conviction and sentences recorded by trial court against accused were set-aside in circumstances.

Heroin weighing 3 kilograms was alleged to have been recovered from accused who was convicted by Trial Court and sentenced to imprisonment for seven years

Validity

Prosecution was unable to prove manner of seizing of samples

Seized articles were not handed over to Investigating Officer

Parcel of 100 grams heroin was received on 15.04.2011 and the same was deposited in the Office of Chemical Examiner

Statement under S. 161, Cr.P.C. of prosecution witness receiving sample was recorded on 13.08.2013

Investigating Officer had recorded statement of prosecution witness after a long gap and did not offer any explanation

Unexplained and unjustified long delay on the part of Investigating Officer in recording statement of material witness during investigation in case of narcotic substances, rendered the evidence of such witness unreliable

No proof was given by prosecution that seized articles were kept in safe custody and the same were handed over to Investigating Officer

Vital inconsistencies existed in prosecution case which could not be ignored

High Court set aside the findings recorded by Trial Court as the same suffered from legal infirmities and accused was acquitted of the charge

Appeal was allowed in circumstances.

Charas weighing 1010 grams and heroine weighing 215 grams was allegedly recovered from the possession of accused who was an old man of 74-75 years

Accused was convicted by Trial Court and sentenced to imprisonment for six months

Plea raised by accused was that 1 gram of heroine and 5.5 grams of Charas were sent for chemical examination which quantity did not represent exact nature of recovered narcotic substances

Validity

Conviction of a 74-75 years old person could not be sustained merely on the basis of testimony of police officers, who were found to have unleashed onslaught of cases of such like nature against the accused, invariably ending in his acquittal

Accused was not convicted even in a single case

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

Appeal was allowed in circumstances.

Charas weighing five kilograms was recovered from the possession of accused in five packets and 10 grams sample was taken out from each packet

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

Validity

Charge against accused was of 5 kilograms Charas and he had already served out period of more than six years of his substantive sentence excluding the remissions

High Court maintained conviction of the accused but reduced the sentence to already undergone and amount of fine was also reduced from Rs.100,000 to Rs. 35,000.

Five accused persons were convicted and sentenced by Trial Court for maximum imprisonment for three years as Charas weighing different quantities maximum upto three kilograms were recovered from each accused

Validity

Prosecution led sufficient evidence to prove case against all five accused persons beyond any shadow of doubt

Once initial burden of proof was discharged by prosecution with cogent evidence then in terms of S. 29 of Control of Narcotic Substances Act, 1997, accused persons had come under heavy burden to prove their innocence through reliable evidence

Accused did not opt to appear as their own witnesses under S. 340(2), Cr.P.C. to prove their innocence

No evidence was available on record on behalf of accused persons that police had some grudge against them to falsely implicate them in the case

Improbable to plant such a huge contraband against accused persons without any reason

High Court declined to interfere with conviction and sentence awarded to accused persons

Appeal was dismissed in circumstances.

Heroin weighing 1145 grams was recovered from accused who was convicted by Trial Court and sentenced to imprisonment for six years

Validity

Case property was handed over to prosecution witness at 7pm on 14-12-2013 and the same had given rise to a question as to how the parcel was received in concerned office on the same day at or after 7pm because the office did not remain open till such time

Room from where contraband material was recovered at the pointing of accused was not locked when Investigating Officer reached there along with police party to effect recovery

Almirah from which heroin was allegedly recovered at the pointing of accused was also not locked and accessible for other dwellers of the abode

Such had created doubts about veracity of recovery of contraband material at the instance of accused

Single circumstance which created reasonable doubt regarding prosecution case, the same was sufficient to give benefit of the same to accused

High Court extended benefit of doubt to accused person, set aside conviction awarded by Trial Court and acquitted him of the charge

Appeal was allowed under circumstances.

Heroin weighing 43 kilograms and opium weighing 23 kilograms were recovered from the secret cavities of car in which accused persons were travelling

Trial Court convicted both the accused persons and sentenced them to imprisonment for life

Validity

Evidence led by prosecution was without any material variation or lapses

Memo of recovery and FIR were fully corroborated and resultantly proved to the satisfaction of Trial Court

Defense of accused persons was dependent upon mere denial of charge, case as well as evidence and no defense evidence was adduced by accused persons

Initial burden resting on prosecution stood discharged on its part and accused persons failed to rebut the same as provided under S. 29 of Control of Narcotic Substances Act, 1997 and also did not lead defense evidence establishing their innocence in the matter

Accused persons were first offender and bread earner members of their families who had served major portion of their sentence

High Court maintained conviction of the accused persons but reduced the sentence of imprisonment to one already undergone, which was 20 years and 8 months

Appeal was dismissed accordingly.

When case against accused was of further inquiry, the embargo contained in S. 497, Cr.P.C., barring bail to accused did not apply

On the same analogy bar contained in S. 51 of Control of Narcotic Substances Act, 1997, was not applicable in a case of possession and recovery of narcotics if evidence in possession of prosecution prima facie did not make out a case punishable with death

Provision of S. 25 of Control of Narcotic Substances Act, 1997, excluded application of S. 103, Cr.P.C. to searches made under Control of Narcotic Substances Act, 1997

In presence of a special law regarding search, general provisions would not prevail

Accused did not deny recovery of Charas from the car in possession of accused but pleaded that the same was recovered from the luggage of co-accused/passengers, such plea could only be determined at trial

Case of accused did not call for further inquiry as envisaged under S. 497(2), Cr.P.C.

Bail application was dismissed in circumstances.

Complainant submitted that two pattis, 500 gms. each, charas was sent to the Laboratory and was sealed separately under memo of recovery

Investigation Officer, on the other hand stated that property handed over to him consisted of two parcels each containing 500 gms of charas, one for sending to Chemical Examiner at place "R" and the other at place "K" and one packet contained the remaining material

Such fact was not mentioned in complainant's statement and it was necessary for prosecution to examine the Police Constable, who according to complainant, prepared the memo of recovery

Investigation Officer further submitted that he had not himself inspected the place of alleged recovery

Contrary to Investigation Officer, complainant stated that he (the investigation officer) visited the alleged place of incident upon his pointation

Material contradictions existed in the case of prosecution in respect of alleged recovery

Accused was not directly connected with offence through sufficient evidence produced against him before Trial Court

Witnesses relied on a police constable who was not cross examined in the court

Accused was acquitted in circumstances.

Prosecution witness stated that SHO, one of the Prosecution witnesses, got Mashirnama written through a police constable, but he was unable to disclose the name of that constable, whereas according to mashirnma there was only one other constable, apart from the two prosecution witnesses

Contrary to one prosecution witness, other prosecution witness submitted that he himself prepared mashirnama and it was in his own handwriting

First prosecution witness further stated that hands of accused were tied whereas other prosecution witness submitted that accused was handcuffed

Other prosecution witness and mashirnama mentioned that two pieces of charas were lying in shopper but in chemical examination report article which was sent to the laboratory was one black piece

Incident occurred on 16-12-2003 and according to report it was received by the Chemical Examiner on 23-12-2003

Prosecution witness stated that he was transferred on 23-12-2003 but submitted that his successor might have sent the sample to Chemical Examiner

Held, that such contradictions were material and case of prosecution was not free from doubt

Appeal was allowed.

Accused persons were convicted and sentenced to imprisonment for life alleging recovery of 48 packets of Chars from their vehicle

Validity

Entire page which was to refer to relevant protocols and tests was not only substantially kept blank but the same had also been scored off by crossing it from top to bottom

Such was a complete failure of compliance of relevant Rule and such failure reacted against reliability of report produced by prosecution before Trial Court

Provisions of S. 36 of Control of Narcotic Substances Act, 1997, required a government Analyst to whom a sample of recovered substance was sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in "the prescribed form"

If report prepared by government analyst was not prepared in the prescribed manner then it could not qualify to be called a report in the context of S. 36 of Control of Narcotic Substances Act, 1997, so as to be treated as "conclusive" proof of recovery of narcotic substance from accused person

Investigating officer appearing before Trial Court had failed to even mention name of police official who had taken the samples to office of Chemical Examiner

No such police official was produced before Trial Court to depose about safe custody of samples entrusted to him for being deposited in office of Chemical Examiner

Prosecution was not able to establish that after alleged recovery of substance so recovered was either kept in safe custody or that samples were taken from recovered substance had safely been transmitted to office of Chemical Examiner without the same being tampered with or replaced while in transit

Prosecution failed to prove its case against accused persons beyond reasonable doubt

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

Appeal was allowed.

Though no absolute bar could be placed on releasing vehicle on interim custody under the provisions contained in S. 74 of Control of Narcotic Substances Act, 1997 but the claimant had to at least prima facie establish that he had no nexus or connection of whatever kind with commission of offence or with offender

Accused was driver of petitioner, which prima facie made nexus of petitioner with accused

Proposition of innocence of accused could not be determined without recording of evidence in such respect that it was not known to him that offence was being or had to be committed through the vehicle in question

Control of Narcotic Substances Act, 1997, which had super imposing status as regard to general criminal law and special procedure was provided for redressal of grievance, recourse to general law was to be avoided

Provision contained in section 48 of Control of Narcotic Substances Act, 1997, conferred rights upon aggrieved person to file appeal against any order passed by Special Court in exercise of its jurisdiction thereunder and revision was competent without first exhausting remedy of appeal provided under S. 48 of Control of Narcotic Substances Act, 1997

Revision was dismissed in circumstances.

If case is of possession of narcotic drug, then prosecution is under obligation to prove that narcotic drug had been recovered from conscious possession of accused.

Charas weighing 336 kilograms was recovered from secret compartments of truck in which accused was sitting on the seat next to driver

Trial Court convicted accused and sentenced him to imprisonment for life

Plea raised by accused was that he boarded truck on the way and did not know about presence of narcotic substances in secret compartments of truck

Validity

Knowledge of accused was not proved by prosecution through any cogent evidence either oral or documentary

Prosecution simply proved his presence in truck with co-accused and mere presence of accused in vehicle was not sufficient to saddle him with recovery of huge quantity of narcotics

Prosecution failed to prove guilt of accused by proving his connectivity or any nexus with his co-accused or his conscious knowledge about concealed contraband narcotics

Such important aspect of case escaped notice of Trial Court and thereby reached to wrong conclusion by convicting the accused

Findings of Trial Court regarding conviction and sentence of accused were set aside and he was acquitted of the charge

Appeal was allowed in circumstances.

Chemical (diazepam) weighing 248 kilograms was allegedly recovered from vehicle being driven by accused, who was convicted and sentenced to imprisonment for life by Trial Court

Validity

Prosecution did not associate any private witness of the area from where alleged recovery of chemical substance and arrest of accused was made on the basis of previous spy information in day time (4-00 p.m.) at a very thickly populated area

No explanation in such regard was made in F.I.R., memorandum of arrest, challan (investigation report), or in evidence of prosecution witnesses, who were all police officials, hence violated express provisions of Ss. 20 & 21 of Control of Narcotic Substances Act, 1997, read with S.103, Cr.P.C.

Prosecution did not examine person on whose spy information, accused was allegedly transporting chemical substance (diazepam) in 10 drums in huge quantity i.e. 248 kilograms in vehicle, nor produced vehicle or its key before Trial Court as case property

Owner of vehicle was neither cited as prosecution witness nor his evidence was recorded to support their case or to establish any connection of accused either with vehicle or with chemical substance (diazepam), which was allegedly recovered from the car

Prosecution failed to establish its case against accused without reasonable doubt, whereas judgment passed by Trial Court suffered from legal defects, hence not sustainable in law

High Court set aside judgment passed by Trial Court and accused was acquitted of the charge

Appeal was allowed in circumstances.

Charas Garda weighing 58 kilograms was recovered from gas cylinders fixed in vehicle which was being driven by one accused while remaining two were also travelling in it

Trial Court convicted all three accused and sentenced them to imprisonment for life

Plea raised by accused was that Investigating Officer had sent samples to government analysts beyond 72 hours of seizure

Validity

Failure to follow Control of Narcotic Substances (Government Analysts) Rules, 2001, could not render search, seizure and arrest under Control of Narcotic Substances Act, 1997, an absolute nullity and could not make entire prosecution case doubtful, except for the consequences provided in Rules

Provisions of Control of Narcotic Substances (Government Analysts) Rules, 2001, were directory and not mandatory so could not control substantive provisions of Control of Narcotic Substances Act, 1997

Belated dispatch of samples was not fatal to prosecution case, in absence of any objection regarding the same having been tampered or manipulated

Charge against accused persons was proved beyond any shadow of doubt and they had been rightly convicted and sentenced by Trial Court

Appeal was dismissed in circumstances.

Plea raised by accused was that there was unexplained delay of four days in sending samples to laboratory and all recovery witnesses were police officials

Validity

Held, it was not requirement of law that whole contraband material should be sent for chemical examination for opinion of Chemical Examiner, only a portion was to be sent

Delay of four days in sending samples could not be treated as fatal in absence of objections regarding the same having been tampered with or manipulated

Sample was sent to Chemical Examiner after four days of recovery but from evidence of complainant and investigating officer no question was put to any of them as to where the sample was lying during those four days

Such delay in sending samples was immaterial and did not adversely affect prosecution case

Though prosecution witnesses had given different weight of allegedly recovered contraband material than the one disclosed in F.I.R. but on the basis of such difference in weight alone it could not be said that no recovery was effected from accused and they could not claim acquittal in such a heinous offence involving capital punishment

Evidence of police officials could not be disbelieved as a whole merely because of their being police officials until and unless some mala fide or enmity was brought on record to indicate false implication of accused in case, which factor was missing

Trial Court did not commit any illegality while convicting accused persons

High Court maintained conviction and sentence awarded to accused by Trial Court

Appeal was dismissed in circumstances.

Laboratory report produced by prosecution of alleged test violated the mandate of law, as Industrial Analytical Centre, even to prosecution was neither notified by Federal or Provincial Government to be a testing laboratory nor any official of such laboratory had been notified as Analyst

Such report submitted by prosecution could not be made basis of conviction for offence under S.9(c) of Control of Narcotic Substances Act, 1997

Alleged samples which according to prosecution were recovered from six jute bags out of 40 and were weighing six grams were never sent for chemical analysis

Remaining recovered substance was never sealed, therefore, fresh samples could not be drawn from remaining case property, as no sanctity could be attached to recovered remaining substance which had been allegedly lying in godown of authorities for more than five years and that too in unsealed condition

High Court set aside conviction and sentence awarded to accused and acquitted him of the charge

Appeal was allowed in circumstances.

Provisions of Rr. 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, are directory and substantial compliance is sufficient

Even where there is no compliance at all, provisions of Control of Narcotic Substances Act, 1997, are not invalidated by such non-compliance, if the act otherwise is done in accordance with law.

Plea raised by accused was that prosecution did not prove conscious knowledge of accused regarding presence of Charas in the vehicle

Validity

Samples, from recovered narcotics, were sent to Forensic Science Laboratory for chemical analysis and report received therefrom was in positive

Nothing was brought on record to prove that recovered contraband was planted against accused

Such huge quantity worth lacs of rupees could not be planted by police at its own, in absence of any enmity or ulterior motive against accused

No evidence was available to prove that prosecution witnesses had any previous enmity or grudge with accused to falsely implicate him in the case

Accused at the relevant time was driving motor car in question and was incharge of the same which was under his control and possession

Whatever articles were lying in vehicle were under his control and huge quantity of narcotics had been recovered from secret cavities of his car for which no other person could be held responsible, except the accused, who was incharge of the vehicle which he was driving

No misreading and non-reading of evidence or any infirmity in judgment was noticed which could warrant interference of High Court in its appellate jurisdiction

Appeal was dismissed in circumstances.

If prosecution proves recovery of contraband from constructive custody of accused, then burden of proof lies on accused to prove that contraband recovered was not in his conscious knowledge.