ARIF ULLAH Versus State

SALIM KHAN, J.----- An F.I.R. No.594 dated 12-9-2003 of Police Station Daudzai, District Peshawar, was registered on the basis of Murasila dated 12-9-2003 sent by Abdul Bais Khan, S.-I. against Arifullah under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter called as the Act) regarding the recovery of 1400 grams Charas from the possession of the accused. It was mentioned that the accused was stopped in the field near his house with a black plastic bag in his hand which contained the said narcotic, out of which 4 grams were separated and sealed in a parcel for F.S.L. and the remaining 1396 grams were sealed in another parcel. It was on 10-10-2003 that the samples contraband Charas was received in F.S.L. and the report was given on 28-10-2003. The samples were, therefore, received by the F.S.L. Peshawar after 28 days of its recovery and the report was given after 18 days of such receipt.

2. Badr-uz-Zaman S.H.O. (P.W.1) had recorded complete challan but was not cross-examined. Abdul Bais, S.-I. appeared as P.W.2 and narrated the story of the occurrence and the investigation. He stated that he had sent the samples to F.S.L. on his application Exh.P.W.2/2, and that the accused was required in case F.I.R. No.487. On cross-examination, he stated that the accused did not try to decamp from the place of occurrence because the police party was present around him. The Investigating Officer personally arrested the accused facing trial, the accused was holding the plastic bag in his hand, he had not mentioned the fact of affixing 3/3 seals of monogram BK on the parcels. He also did not remember that how many packets of Charas were recovered and what was the number of the slabs. He had separated the samples through his hands, he had handed over the samples along with application to the Moharrir of police station for sending the samples to F.S.L. and the remaining contraband Charas was also handed over to him, but he did not record the statement of the Moharrir as the custodian of case property. He did not know the name of the person who was the owner of the field, from which the accused was arrested. He also did not remember the time at which the accused was taken to the police station.

3. The Court observations were that "on inspecting the cover/cloth in which the case property has been wrapped it was found that a broken seal is present at one place whereas on the two other places seal is not present, however, mark thereof is present which means that seal has got removed from those two places. On the broken seal monogram is also not complete as portion of the seal is not present. When the case property was opened monogram of BK was found therein. The case property consists of, 15 small slabs, each of which is wrapped in separate plastic cover. Sample has been taken from all the 15 slabs. All the 15 slabs were collectively wrapped in one plastic cover. On weighing the case property was found to be a few grain less than 1400 grams". The statement of P.W.2 regarding the same was that due to passage of time and lying in Malkhana, the seals have got removed from the case property.

4. Faridullah H.C. (P.W.3) was the marginal witness of the recovery memo. Exh.P.C., while Ehsanullah A.S.-I. (P.W.4) had recorded the F.I.R., which he accepted as correct and correctly bearing his signature. The prosecution evidence was then closed. Statement of the accused was recorded in which he denied the recovery and pleaded his innocence. After hearing arguments, the accused was convicted under section 9(c) of the Act and was sentenced to 2 years and 6 months' R.I. with a fine of Rs.60,000, or in default of payment of fine, to undergo 4 months' S.I. The benefit of section 382-B, Cr.P.C. was, however, extended to the accused.

5. Mr. Shahid Qayum Khattak, Advocate, for the appellant referred to the delay caused in sending of the sample to the F.S.L. and the delay in the preparation of report. During his arguments, he referred to sub-rule (2) of Rule 4 and sub-rule (3) of Rule 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, which are as under:-

"4. (2) Samples may be dispatched for analysis under the cover of a Test Memorandum specified in Form-I at the earliest, but not later than seventy-two hours of the seizure. The envelope should be sealed and marked Secret Drug Sample/Test Memorandum."

"5. (3) All samples shall be passed to the analyst the same day, who will then keep the same in his safe custody and will examine and record its, or their, weight in the Test Memorandum. He will compare the markings on the Test Memorandums with the markings on the packages envelopes and will ensure that he test the relevant sample, and in no case, the analysis of a narcotic drug be delayed as the Courts may refuse to extend remand beyond fifteen days in the absence of a chemical report."

He contended that when it is prescribed by the law/rules that an authority is to do something in a prescribed manner, that authority has to do it in the same manner and not otherwise. The provisions of the law/rules mentioned above are directory in nature, but are binding on the Investigating Officer and the Analyst. Avoidance of the said rules, however, by itself is not fatal to the whole case and does not vitiate the proceedings. Avoidance of the said rules, however, raises suspicion about the safe custody of the samples from the time of recovery to the time of receipt in the F.S.L., and from the time of such receipt till the delivery of report regarding the same. It is, however, for the accused to raise objection in this respect, if he is of the view that such samples were not properly handled and kept in safe custody. In such a situation, the prosecution shall have to shift the burden to accused in the light of section 29 of the Act by prima facie proving through the statements of the Moharrir and the representative of the F.S.L., or otherwise, that the samples were kept in safe custody.

6. The recovery of the Charas was proved by the prosecution witnesses who were reliable and their statements are convincing, however, in the light of the observations of the Court, samples were taken from all the 15 'slabs but there was no evidence before the Court that each of the 15 slabs, as originally recovered, was Charas. As no separate sample was taken from each of the slabs, it could not be surely stated that how many slabs were actually of Charas. At least, one of them was Charas, although more than one could be proved to be Charas.

7. The case against the present accused-appellant is doubtful to the extent of actual quantity of the recovered contraband Charas, but not to the extent of recovery of the contraband at all. Keeping in view the provisions of section 9(b) and section 9(c) of the Act, we are of the view that the prosecution could not be able to prove beyond any shadow of doubt that the quantity of the Charas exceeded one kilogram. The prosecution, however, has proved its case against the accused for B recovery of contraband from his person, though not exceeding one kilogram. We, therefore, maintain the conviction of the appellant but reduce his sentence from 2-1/2 years R.I. to one year's R.I. and also reduce the fine from Rs.60,000 to Rs.5,000 or in default to undergo one months' S.I. Benefit of section 382-B, Cr.P.C. already extended to the appellant shall remain intact. With this modification in the sentence this appeal is dismissed.

N.H.Q./386/P Sentence reduced.