ALLAH RAKHA Versus State
MUJAHID MUSTAQEEM AHMED, J.--- Having been tried in case FIR No. 570 dated 7.12.2010 under section 9(c) of the Control of Narcotic Substances Act, 1997 (C.N.S.A., 1997) registered at Police Station Saddar, Kahror Pakka, Distt. Lodhran, Allah Rakha, appellant was found guilty of the charge of possessing 1500 grams "charas" and was resultantly convicted under section 9(c) of the C.N.S.A., 1997 and sentenced to suffer three years' R.I. with a fine of Rs.15,000/- in default whereof to further undergo S.I. for four months vide judgment dated 9.12.2011 handed down by the learned Addl. Sessions Judge, Kahror Pakka, Distt. Lodhran. Feeling aggrieved of said conviction and sentence, the convict has filed instant appeal in terms of section 48 of the Control of Narcotic Substances Act, 1997.
2. Prosecution story put forth by Abbas Ali, (PW.5) Sub-Inspector of Police Station Saddar, Kahror Pakka, in FIR Ex.PA, is that on 7.10.2010 he along with other police contingent was patrolling in his beat when, on spy information, he spotted the appellant coming on a motorcycle who was stopped and on search 1500 gram "charas" was recovered from him, out of which 10 gram was separated. It was case of the complainant that he sealed the recovered narcotics into two separate parcels and took the same into possession vide memo Ex.PB. Motor cycle (P.2) of the appellant was also seized vide recovery memo Ex.P.C. The complainant drafted the complaint (Ex.PD) and sent the same to the police station where formal FIR was registered. On completion of investigation finding the accused/appellant involved in commission of crime, the investigator challaned him to court to face trial.
3. At trial, on refusal of charge by the appellant, the prosecution produced its evidence. Thereafter, the appellant was examined under section 342, Cr.P.C. who denied and dismissed each piece of prosecution evidence and claimed innocence. However, finding evidence of the prosecution worthy of credence, learned trial Court convicted and sentenced the appellant as noticed above.
4. Learned counsel for the parties have been heard at length and record perused with their assistance.
5. We have minutely gone through the record in the light of contention of learned counsel for the appellant that the prosecution has failed to prove safe custody of narcotics allegedly recovered from the appellant, its keeping in "Maal Khana" and onward transmission to the laboratory for chemical examination and as such the appellant deserves acquittal.
6. Abbas Ali, Sub-Inspector (PW.5) not only arrested the appellant and drafted the complaint but also investigated the case. He deposed at trial that on personal search 1500 grams "charas" was recovered from the appellant. It was his claim that out of recovered quantity he separated 10 gram "charas" for preparation of sample and made two separate parcels which he took into possession vide recovery memo Ex.PB. To this extent he was fully corroborated by Muhammad Sadiq, Head Constable/PW.3 (witness of recovery memos Exhs. PB and PC). However, the complainant/investigator throughout his testimony did not disclose as to where he kept the contraband after seizure.
7. Fakhar Abbas, Moharrer/Head Constable (PW.4) deposed that on 7.12.2010 Abbas Ali S.I./investigator deposited a sealed parcel containing "charas" which on 23.12.2010 he handed over to Muhammad Iqbal, Constable PW.2 for onward transmission to the office of Chemical Examiner, Multan. This piece of testimony of Moharrer reflects that only sample parcel was deposited by the complainant/investigator with him (Moharrer). This stance of the Moharrer is corroborated by Muhammad Iqbal, Constable PW.2. There is nothing in the statement of the Moharrer to show that remaining quantity of contraband (other than sample parcel) was also deposited by the investigator with him or that he kept the same in safe custody. Thus question remains unanswered as to where the remaining recovered narcotics was kept by the complainant/ investigating officer.
8 Section 20 of the C.N.S.A., 1997 empowers a Special Court to issue search warrant of any building etc. where it believes that narcotics has been kept or concealed. Section 21 empowers a police officer of the rank of Sub-Inspector to search any building etc. without warrant in which he has information of keeping or concealing any narcotics and a warrant for search cannot be obtained without affording the person an opportunity for concealment of evidence, such officer may seize such narcotics. Section 27 of this Act prescribes procedure for disposal of articles seized. It would be advantageous to reproduce said provision which runs as under:
"27. Disposal if persons arrested and articles seized.---(1) Every person arrested and articles seized under a warrant issued under section 20 shall be forwarded without delay to the authority by whom the warrant was issued; and every person arrested and article seized under section 20 or section 21 shall be forwarded without delay to -
(a) The officer-in-charge of the nearest police station; and
(b) The Special Court having jurisdiction.
(2) The authority or officer to whom any person or article is forwarded under this section shall, with all convenient dispatch, take such measures as may be necessary, under the law for the disposal of such person or article.
9. Section 32 of the C.N.S,A, 1997 relates to confiscation of recovered narcotics. Relevant part of this provision of law reads as under:-
"32. Articles connected with narcotics.---(1) Whenever any offence has been committed which is punishable under this Act, the narcotic drug, psychotropic substance or controlled substance, materials, apparatus and utensils in respect of which or by means of which such offence has been committed shall be liable to confiscation.
(2) Any narcotic drug, psychotropic substance or controlled substance lawfully imported, transported, manufactured, possessed, or sold along with, or in addition to, any narcotic drug, psychotropic substance or controlled substance which is liable to confiscation under subsection (1) and the receptacles or packages, and the vehicles, vessels and other conveyances used in carrying such drugs and substances shall likewise be liable to confiscation."
10. Section 516-A of the Cr.P.C. may also be of relevance to the proposition under discussion. Relevant part of the said provision is reproduced hereunder:
"516-A. Order for custody and disposal of property pending trial in certain cases.---When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
.........
Provided further that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of 1969) the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or any other law for the time being in force, the Court may, either on an application or of his own motion and under its supervision and control obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf.
Provided also that such samples shall be deemed to be whole of the property in an inquiry or proceeding in relation to such offence before any authority or Court. "(emphasis supplied)
Above provisions of law would make it clear that specific procedure has been prescribed for disposal/destruction of case property which if consists of narcotic drug, psychotropic substance or controlled substance constituting an offence under the C.N.S.A. 1997 is liable to be confiscated and only the court is authorized for destruction of such case property. A police officer of the rank of a Sub-Inspector or any other police officer duly authorized in that behalf by the government can seize a property which has been used in commission of an offence, but he has no power to dispose of the same. Rather he is obliged to deposit the same in Court or with the officer in charge of a police station as described in the Police Rules 1934. Rule 22.16 of the Police Rules, 1934 provides that weapons, articles and property in connection with criminal cases recovered during the course of searches made in police investigations are to be entered in the store-room register. Under Rule.22.18 of these Rules Instructions have been issued regarding custody of property so seized. Sub Rule (2) of this Rule is relevant for the purpose of this case and is reproduced hereunder:
"(2) All case property and unclaimed property, other than cattle, of which the police have taken possession, shall, if capable of being so treated, be kept in the store room. Otherwise the officer in charge of the police station shall make other suitable arrangements for its safe custody until such time as it can be dealt with under sub-rule (1) above." (emphasis supplied)
11. Combine effect of above provisions of law is that a police officer/investigating officer is required to forward the articles seized under sections 20, 21 or 27 of the C.N.S.A., 1997 or under other enabling provisions of law immediately to the officer-in-charge of the police station, who in turn under Rule 22.18(2) quoted above, shall keep such recovered property in store-room or make other suitable arrangements for its safe custody against entries to be made in the relevant register. Wisdom of the legislature behind above procedure is that it is duty of the prosecution to produce case property in court as it is the evidence, which has been collected during investigation and is being used against the accused prove offence or as the corroborative piece of evidence. If the investigator is allowed to dispose of the same without any order of competent court, it would deprive the accused of his right to examine allegedly recovered property during trial, when prosecution has discharged its duty in producing case property. The act of investigator for not immediately forwarding the seized article (contraband) to the officer in charge of the police station for safe custody/depositing the same in "Maal Khana" is flagrant violation of the above provisions of law thus depriving the accused "fair trial" a right guaranteed under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. Disposal of case property by means other than prescribed above, would cause serious damage to the prosecution case and it can safely be held that the prosecution has failed to prove the case against accused beyond reasonable doubt, therefore, he was entitled to benefit of doubt. Reliance in this regard may be placed on case Ali Muhammad v. The State (PLD 2010 SC 623). Non-proving of safe custody of the narcotics as required above is not a defect curable rather it goes to root of the case.
12. We have also noticed that Muhammad Iqbal, Constable PW.2 deposed that Fakhar Abbas Moharrer handed over to him one sealed parcel of "charas" which he deposited on the same date intact in the office of Chemical Examiner Multan. He never claimed that he took parcel of sample to the office of the E.T.O. whereas report of the Chemical Examiner depicts that the same was forwarded through E.T.O. It is not discernable from record as to who took the sample parcel to the office of the E.T.O. Thus safe custody of case property and the sample thereof from day one is missing in this case and there is no conclusive proof that recovered "charas" was deposited in "Maal Khana" and same was not tampered with said discrepancy has thus created a serious dent in the link of evidence produced by the prosecution.
13. We are aware that chain of custody begins with the recovery of the seized narcotics by the police and included the separation of representative sample of the same and their dispatch to the Narcotics Testing Laboratory. Prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, would cast doubts on the safe custody and safe transmission of the sample and would impair and vitiate the conclusiveness and reliability of the report of the Chemical Examiner rendering it incapable of sustaining conviction. Reliance in this regard is placed on case The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039).
14. As noted above, safe custody and transmission of samples of the alleged narcotics from the spot of recovery till its receipt by the office of Chemical Examiner is not proved beyond doubt and this leads us to hold that the very foundation on which whole prosecution case has been built has no legs to stand and evidence thus produced is not free from doubts. Needless to mention that benefit of doubt must go to the accused not as a matter of grace but as of right and we hold accordingly. Reliance is placed on cases Muhammad Mansha v. The State (2018 SCMR 772), Mst. Nazia Anwar v. The State and others (2018 SCMR 911), Azhar Mehmood and others v. The State (2017 SCMR 135), Ayub Masih v. The State (PLD 2002 SC 1048), Muhammad Akram v. The State (2009 SCMR 230), Amin Ali and another v. The State (2011 SCMR 323), Arif Hussain and another v. The State (1983 SCMR 428) and Tariq Pervaiz v. The State (1995 SCMR 1345).
15 In view of what has been noticed and discussed above, we find that the prosecution has miserably failed to prove its case beyond doubts. Therefore, relying on the principle of benefit of doubt, this appeal against conviction is allowed; conviction and sentence of the appellant is set aside and he is acquitted of the said charge. He is present on bail and stands discharged of his bail bonds. The case property i.e. motorcycle be given to its owner. Rest of case property, if any, be dealt with as per judgment of learned trial Court.
SA/A-78/L Appeal allowed.