Recovery of narcotic substances

Recovery of heroin, ice, opium and charas (weighing differently) in total around 15 kilograms were recovered from secret cavities of the truck in which accused was also travelling

Narcotics were concealed from all individuals and the contraband items were recovered from secret cavities of vehicle in question

There was no evidence to suggest that accused was aware of presence of contraband items in concealed cavities of truck or had exclusive knowledge of the cavities in order to be subject to the provisions of Article 122 of Qanun-e-Shahadat, 1984

Prosecution had merely established presence of accused in truck at the time of its interception

Mere presence of accused in truck was not sufficient to implicate him in the case unless conspiracy or abetment of the offense was demonstrated and proven

Concept of collective or family liability was generally rejected by criminal law due to the fact that principle of actus reas (the guilty act) and mens rea (the guilty mind) attached liability to the individual who committed the act with intent

Case against accused was one of further inquiry

Bail was allowed.

Allegation against the accused-applicants was that 04-kilograms and 900-grams charas was recovered from their joint possession

From perusal of record it transpired that the contraband charas was recovered from a bag which was brought before the police from a truck by both the petitioners/accused and driver of said truck was also present at the time of recovery of contraband charas

Said charas was not recovered from the actual possession of the petitioners as bag containing the charas was lying in the truck

However, it was yet to be ascertained as to whether the petitioners/accused were actually in possession of the charas, hence case against the petitioners/accused was one of further inquiry

Moreover, sample of recovered charas had been sent to the Chemical Examiner after delay of more than seven days

Concerned SHO was present before the Court and he had failed to account for delay in sending the sample to the Chemical Examiner

Besides, the record was also silent as to why the sample was sent with such delay to Chemical Examiner

Almost all the proceedings had been conducted by Foot Constable who was also complainant of the case

Recovery had allegedly been effected in front of Police Station in violation of relevant provisions of Control of Narcotic Substances Act, 1997

Station House Officer and Addl. Station House Officer were present in the police station but they had not bothered to conduct recovery proceedings and preliminary investigation

Furthermore, police had failed to record or to take photographs at the time of alleged recovery of charas as the law permitted the use of modern devices or techniques

Moreover, the petitioners/accused were not previous convict and they were behind the bars since their arrest and they were no more required for further investigation

Consequently, bail application was allowed, in circumstances.

Safe custody and safe transmission of alleged drug from the spot of recovery till its receipt by Narcotic Testing Laboratory were not satisfactorily established

It was mandated in Police Rules, 1934 that case property must be kept in Malkhana and entry of the same must be recorded in Register No. XIX of that police station

It was duty of police and prosecution to establish that case property was kept in safe custody, and if required to be sent to any laboratory for analysis, to further establish its safe transmission and also record it in the relevant register, including road certificate etc.

Procedure in Police Rules, 1934 ensured that case property, when it was produced before Court, had remained in safe custody and was not tampered with until that time

Complete mechanism was provided in Police Rules, 1934 regarding safe custody and safe transmission of case property to concerned laboratory and then to Trial Court

Each sample was to be tested separately and individual reports must be prepared for each sample

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

In the present case. there were serious procedural violations, absence of credible forensic evidence and failure to establish safe custody and transmission

Supreme Court set aside conviction and sentence awarded to accused as prosecution could not prove its case beyond reasonable doubt and accused was acquitted of the charge

Appeal was allowed.

For justifying conviction of accused, prosecution had to establish that chain of custody was safe, secure and indispensable in order to place reliance on the report of Chemical Examiner

Prosecution failed to establish such chain of safe custody and transmission of samples of narcotic from place of seizure to police station and thereafter to Chemical Examiner

Sanctity of chain of transmission stands as the cornerstone for maintaining integrity and evidentiary credibility, particularly in narcotics cases where law imposes severe and inexorable punishments

Any rupture or inconsistency in chain of custody strikes at the root of prosecution's case rendering evidence susceptible to doubt and challenge

Prosecution bears burden of ensuring unbroken, meticulously documented chain of custody so as to preclude any possibility of tampering, substitution or contamination

If prosecution fails to establish an unbroken chain of transmission of narcotic sample and any breakage or discrepancy is observed in custody of removed substance, the benefit of such lapse must necessarily be extended to accused

When prosecution's evidence is tainted with doubt, scales of justice must tilt in favor of accused

Any failure to prove safe and continuous handling of narcotic sample from seizure to forensic analysis, not only weakens prosecution's case, but also vitiates reliability of evidence entitling accused to benefit of doubt

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

Appeal was allowed.

Neither any video in shape of recording and photographs of alleged recovery was collected by police nor any private witness from locality was associated to prove alleged recovery from the possession of accused

Use of modern devices during recoveries, is not merely a procedural formality but a crucial safeguard to protect innocent persons from potential police atrocities

It provides an objective and unbiased account of recovery process, reducing risk of false implications to ensure that rights of accused are protected

In cases of stringent punishment, prosecution must present clear, cogent and reliable evidence to prove guilt of accused beyond reasonable doubt

In absence of video evidence and independent witnesses, prosecution's case relied on testimony of police officers involved in raid, which was insufficient to meet required standard of proof

Ultimate incarceration of guilty person could repair the wrong caused by mistaken relief of interim bail granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of case albeit his acquittal in long run

Supreme Court set aside the order passed by High Court and bail after arrest was granted to accused

Petition was allowed.

Investigation had already been completed by submitting the challan and other incriminatory evidence in the Trial Court, meaning thereby that the applicant (accused) was no more required for further probe or interrogation

Even otherwise, the recovery of contraband from the exclusive and conscious possession of the applicant (accused) was yet to be established during trial, hence following the principles of further inquiry the applicant (accused) had succeeded in making out a case for grant of bail

Bail application was allowed ,in circumstances.

Appellant bank was legal title holder of vehicle in question pursuant to provisions of Musharakah Agreement or loan agreement

Purpose of repossession by bank was not to put the vehicle to ordinary use but to sell the vehicle to recover funds involved in purchase of the vehicle and/or that were due and payable by the person who had leased / rented the vehicle from the bank

Such purpose could not be achieved during pendency of trial as vehicle could not be disposed of when it was released on Superdari

Provisions of Ss.33 & 74 of Control of Narcotic Substances Act, 1997, when read together with S.516A, Cr.P.C., did not contemplate release of a vehicle on Superdari during pendency of trial to enable a financial institution to effect recovery of funds through the sale of such vehicle

Trial Court rightly denied release of vehicle on Superdari to appellant-bank as the vehicle was yet to be exhibited as case property in a pending trial

Appeal was dismissed, in circumstances.

Charas weighing 1375 grams was recovered from accused who was convicted by Trial Court and sentenced to imprisonment for 4-½ years

Validity

Accused was apprehended by police red-handed in broad-daylight and report of recovered contraband was also positive

Accused failed to show any mala fide/enmity on behalf of police regarding falsely involving him in the case

There were minor discrepancies in statements of witnesses but prosecution case was further strengthened from positive report of Laboratory

High Court maintained conviction awarded to accused but sentence of imprisonment was reduced to one undergone while considering nature of the substance recovered which was less harmful and dangerous as compared to other narcotic substances like heroin etc.; considering quantity of recovered substance; and considering accused was first offender who remained behind bars for about eight months

Appeal was dismissed accordingly.

Charas weighing 7.2 Kilograms was alleged to have been recovered from accused on a Railway platform from her bag and vest worn by her

Trial Court convicted the accused and sentenced her to imprisonment for three years with fine

Validity

Occurrence took place at 1050 hours whereas Murasila (complaint) was received in police station at 1730 hours, after a considerable delay of about 7 hours, which went unexplained

All investigation was conducted before lodging of FIR

When officials who recovered contraband themselves stood witnesses then controversy remained unresolved as to who would substantiate their version regarding separate recoveries made by them from accused

Guilt of accused was not only required to be supported by testimony of complainant but also required to be substantiated by other unimpeachable, irresistible, circumstantial and independent evidence and the same was lacking

Recovery in the mode and manner as narrated by prosecution was doubtful and not appealable to general prudence, rather was concocted and fabricated

Statement of prosecution witness did not mention as to whom he handed over the case property and samples for keeping the same in safe custody

High Court extended benefit of doubt to accused and set aside conviction and sentence awarded to her by Trial Court and she was acquitted of the charge

Appeal against conviction was allowed in circumstances.

Accused persons were employees of cargo services who were convicted by Trial Court and sentenced to imprisonment for fifteen years

Validity

Prosecution failed to prove that narcotics was impounded in container within the territory of Pakistan

Official who initiated inquiry and submitted investigation report did not appear in court as prosecution witness

None of the documents were signed or provided by accused persons

Such was a case of circumstantial evidence and no direct evidence was available

Role of accused persons discovered during inquiry was of a lethargic attitude whether intentionally or un-intentionally on the part of accused

Prosecution did not take central authority into picture to legalize initiation of inquiry, nor correspondence was made with respect to permission for aut dedre, aut judicare

Permission of High Court under S.59 of Control of Narcotic Substances Act, 1997, was not obtained for evidence gathering process and affidavit of foreign official was inadmissible in evidence

No commission was issued for recording of evidence of foreign police officials, nor any effort was made to record their statements through live link or Skype

Documents brought on record were not certified as per law

High Court set aside conviction and sentence awarded to accused persons as no case was made out by prosecution

Appeal was allowed, in circumstances.

Plea raised by accused was that report of chemical analysis was not proved in accordance with law therefore, could not be relied upon

Validity

Report did not indicate protocols applied to carry out the test, except concluding remarks, 'blackish brown resinous material in sealed parcel contains Chars'

Mandatory requirements of law provided under R.6 of Control of Narcotics Substances (Government Analysts) Rules, 2001, were not complied with

High Court declined to rely upon such report as the same was neither a valid piece of evidence nor carried any sanction of law

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

Appeal was allowed in circumstances.

Held, that only that quantity of charas and opium could be taken into consideration for purpose of conviction and sentence which had been received through sealed parcel of Forensic Science Laboratory which, in the present case, was 104.72 grams charas and 19.11 grams opium

High Court altered the conviction of accused under S. 9(b) of Control of Narcotic Substances Act, 1997 for quantity of charas as sent to the Chemical Examiner and convicted the accused under S. 9(a) of the Act for the opium and reduced the sentence to one year and three months

Appeal was dismissed accordingly.

Authorities were aggrieved of sentences awarded to accused persons on the basis of their confessional statements under a stereotype formula, despite the fact that narcotic substances of different quantity was recovered

Validity

Convictions and appeals were based on confessional statements made by accused persons before Trial Court

None of the accused challenged conviction by preferring appeal

Such convictions had attained finality and were accordingly maintained

Judgments were not sustainable to the extent of sentences handed down in each case as stereotype formula was adopted by Trial Court for awarding sentence in each case

High Court declared such awarding of sentence as illegal, arbitrary exercise of discretion and in violation settled principles of law

High Court remanded the cases to Trial Court to determine quantum of sentence afresh, in each case

Appeal was allowed accordingly.

Plea raised by accused was that evidence of police witnesses was not acceptable and no person from public was made recovery witness

Validity

Mere fact that witnesses belonged to police was no ground to discard their evidence

Police witnesses were as good and respectable witnesses as other public witnesses and their statement could not be discarded for the reason that they were police employees

By virtue of S.25 of Control of Narcotic Substances Act, 1997, non-citing of public witnesses was not fatal to prosecution case as S.103, Cr.P.C. had been excluded from its application in cases of narcotics

Prosecution succeeded to prove its case for recovery of Chars and conclusion drawn and reasons given by Trial Court showed fair evaluation of evidence

High Court did not find any illegality or infirmity in judgment warranting interference

Appeal was dismissed in circumstances.

Plea raised by accused was that no private person was associated with recovery proceedings, complainant of case himself investigated the case and accused had been in custody for the last 22 months

Validity

Investigating officer should not be biased and if complainant of crime was also investigating officer, then in such eventuality factor of bias could not be ruled out

Provisions of S. 25 of Control of Narcotic Substances Act, 1997, excluded applicability of S. 103, Cr.P.C. but such exclusion did not authorize investigating officer of police or such other officer absolutely to exclude independent witnesses in all circumstances

Question of extension of benefit of doubt particularly at least in a case of further inquiry needed to be determined at bail stage, keeping in view the difference between "jail life" and "free life"

Accused was a young man of phosphoric age and since his arrest he had been behind the bar (for more than 22 months)

Case set up against accused was of great doubt and needed further inquiry

High Court did not allow to keep accused behind bars continuously amongst criminals and that too without any conviction in regular trial

Grant of bail in bailable offences was a right and not a favour and in non-bailable offences grant of bail though was not a right but a grace/concession

Bail was allowed in circumstances.