Narcotics Investigations and Chain of Custody: What 2022 Cr.C. 492 DB Teaches Us
عنوان: منشیات کے مقدمات میں چین آف کسٹڈی کی اہمیت: 2022 Cr.C. 492 (DB) کا قانونی تجزیہ
منشیات کے مقدمات میں "چین آف کسٹڈی
عدالت نے واضح کیا کہ اگر کیس پراپرٹی (Case Property) کی تحویل، منتقلی اور محفوظ رکھنے کے دوران قواعد و ضوابط کا خیال نہ رکھا جائے، تو یہ تفتیشی عمل کو مشکوک بناتا ہے،
پنجاب فرانزک سائنس ایجنسی (PFSA) کی 2012 کی ہدایات کا حوالہ دیا
پراسیکیوشن، اور عدالت سب کی مشترکہ ذمہ داری ہے ۔
پولیس آفیسرز متعلقہ تفتیشی اہلکاروں کے خلاف محکمانہ اور قانونی کارروائی عمل میں لائیں
نتیجہ:
2022 Cr.C. 492 (DB) صرف اس ایک ہی فیصلہ کو مکمل طور پر پڑھ اور سمجھ لیا جائے تو نئے وکلا بھی منشیات کے مقدمات کا ٹرائل آسانی سے کرا سکتے ہیں۔ پراسیکیوٹرز اور تفتیشی افسران کو بھی یہ فیصلہ ضرور پڑھنا چاہیے تاکہ وہ نقائص دور کیے جا سکیں جو منشیات کے مقدمات میں ملزمان کی بریت کا سبب بنتے ہیں
Must Read Judgement
Acquittal of drug paddlers due to defective investigation and poor prosecution is matter of great concern. Guidelines provided for maintaining chain of safe custody.
2022 Cr.C. 492 (DB) [Lahore High Court, Multan Bench]
Present: Ali Zia Bajwa and Muhammad Shan Gul, JJ.
NADEEM AKHTAR--Appellant
versus
STATE and another--Respondents
Crl. A. No. 94 of 2017, heard on 13.10.2021
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Safe custody--Acquittal of--50 small packets containing heroin total 11 grams were recovered from his pocket--Upon further search of accused chemical in shape of powder (of heroin origin) total 3-KGs and 970 grams (P-5) was also recovered--Chain of safe custody has not been indubitably established by prosecution--Case carrying harder sentence must be proved through credible and persuasive evidence and transparent process in order to rule out possibility of any error--A single circumstance creating reasonable doubt would be sufficient to smash veracity of prosecution case--Conviction and sentence recorded by trial Court are set aside and appellant is acquitted of charge.
[Pp. 496, 497 & 499] A, B, C, D & E
2021 SCMR 451; 2021 SCMR 363; 2019 SCMR 2004; 2021 SCMR 49; PLD 2012 SC 380; 2009 SCMR 579; 2019 SCMR 1217 ref.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Safe custody--Vital steps, which are obligatory to ensure conviction of an accused through maintaining chain of safe custody, are formulated hereinafter to ensure effective investigation and successful prosecution in cases relating to narcotics:
• Any police officer setting up a picket, conducting a raid on spy information or otherwise or leaving police station for patrolling must enter in relevant police register his departure and arrival--Incorporation of arrival and departure by police officer in register No. 2 maintained under Police Rules, 1934 (hereinafter "Rules") is mandatory--The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at police station or elsewhere, with a statement of nature of their duty must be incorporated in aforesaid register--This entry shall be made immediately on arrival or prior to departure of officer concerned and shall be attested by him personally by signature or seal--Every police officer of or above rank of head constable, when returning from duty other than an investigation in which case diaries are submitted, shall have an entry made in daily diary by station clerk or his assistant showing places he has visited and duties performed by him during his absence from police station. Such entries provide corroboration qua alleged recovery of narcotics and arrest of accused and absence of such entries in relevant register creates doubt which goes in favour of accused.
• The parcels of sample and rest of bulk quantity (case property) shall be secured with sealing wax bearing seal impression of responsible/relevant police officer and shall be properly marked and labeled--Thereafter such parcels shall be sent to be kept in safe custody in store room as prescribed under Rules--Entries regarding depositing and removal of said case property subsequently shall be entered in police register No. 19 as provided in Rules.
• Statements of police officials, recovering narcotics from accused, making parcels of case property, transporting same from crime scene to store room to be kept in safe custody, receiving it and keeping it in store room, handing over sample parcels for further transmission to forensic lab and depositing those parcel in forensic lab, must be recorded under Section 161, Cr.P.C. and they must be produced as witnesses during trial to prove fact that narcotics substance as produced in forensic lab and before Court is same which was recovered from accused at crime scene.
• While transmitting sample parcels to forensic lab process provided in rules must be adhered to qua obtaining road certificate from register No. 21 of police station as mentioned in aforementioned rules--Copy of such road certificate should also be made part of case file.
• The police official who transmits complaint to police station for registration of FIR and official who jots down crime report under Section 154, Cr.P.C. in relevant register should be produced before Court as witnesses in order to eliminate all doubts qua culpability of a drug paddler.
• Prosecutor must ensure that no prosecution witness, who is necessary to prove chain of safe custody, is left out--Production of these witnesses before trial Court is eventually responsibility of prosecutor--It is mandatory upon him to perform his functions and exercise his powers fairly, honestly, with due diligence in public interest and to uphold justice.
• It has also been observed by this Court that sometimes crucial incriminatory piece of evidence is not put to an accused, which ultimately results in his acquittal--Trial Court should be very cautious and vigilant, while recording statement of accused as envisaged under Section 342, Cr.P.C. and should make sure that every piece of evidence available on record is put to accused.
• In addition to aforementioned steps, Punjab Forensic Science Agency issued directions in year 2012 to establish valid chain of custody of recovered narcotics, which unfortunately could not be followed strictly--These direction must be followed too and same are reproduced hereafter:-
For a valid chain of custody, all items of evidence must be labeled with following information:
• Name of victim or suspect.
• Case number.
• Type of specimen (i.e., Narcotic Plant material, narcotic medicines, Injections, cigarettes, used syringes, Chars, capsules, opium).
• Amount of sample.
• Time and date of collection.
• Names, stamp, designation of person collecting sample.
Finally, sample collected must be sealed with molten wax seal to document specimen integrity--A reference seal sample must be attached along with packed sample. [Pp. 502, 503& 504] F
M/s. Muhammad Luqman and Rao Matloob Ahmed, Advocates for Appellant.
Mr. Mohammad Ali Shohab, Deputy Prosecutor General for State.
Date of hearing: 13.10.2021.
Judgment
Ali Zia Bajwa, J.--This criminal appeal is preferred against the judgment dated 21.02.2017, passed by the learned Additional Sessions Judge/Judge Special Court-CNSA, Vehari; who, while adjudicating upon case FIR No. 560/2015, dated 19.12.2015, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered with Police Station Danewal Vehari, convicted and sentenced the appellant, as under:-
Ø Under Section 9(c) of the Control of Narcotic Substances Act, 1997, sentenced to undergo R.I. for eight years with fine of Rs. 70,000/- and in case of default in payment thereof, to further undergo S.I. for eight months.
Ø Benefit of Section 382-B, Cr.P.C. was extended in favour of the appellant.
- Precisely, resume of prosecution case as structured in the FIR (Exh.PC) lodged on the basis of complaint (Exh.PB) of Rasheed Ahmed, Inspector (PW-2) is that on 19.12.2015, complainant along with Saeed Ahmed ASI, Maqbool Ahmed ASI, Rasheed Ahmed 614/HC, Ghulam Mustafa 447/C, Abdul Ghaffar 1219/C, Sharafat Ali 1252/C and Shahid Ibrahim 1018/C of CIA Staff, was present in his office. He received spy information that one person was selling contraband (heroin) infront of his house situated behind Mian Electronic Club Road, Vehari. On receipt of information the complainant along with other PWs, while boarding on official vehicle bearing Registration No. VRC/1020 driven by Samar Latif 1416/C reached at the spot, on the signal of the informer encircled the accused, who was apprehended and disclosed his name as Nadeem Akhtar son of Manzoor Ahmed, caste Arain, resident of back side of Mian Electronic Club Road, Vehari. On his personal search 50 small packets containing heroin total 11 grams were recovered from his pocket besides sale proceed consisting currency notes worth of Rs. 3,380/- (P-2/1-12, P-3/1-20, P-4/1-32 and P-5/1-34). Upon further search of accused chemical in the shape of powder (of heroin origin) total 3-KGs and 970 grams (P-5) was also recovered. All the recovered articles were taken into possession vide recovery memo. Exh.PA. The complainant drafted complaint and dispatched it to Police Station for registration of formal FIR. Thereafter investigation was entrusted to Altaf Hussain, S.I. (PW-5) who along with other police officials visited the place of occurrence. He inspected the spot, prepared rough site-plan (Exh.PD) and recorded statements of the prosecution witnesses under Section 161, Cr.P.C. The complainant handed over the case property and sale-proceed to Ghulam Mustafa 447/C for depositing it in Malkhana for safe custody and onward transmission for forensic analysis.
Description: A3. Upon conclusion of investigation, report prepared under Section 173, Cr.P.C. was submitted before the learned trial Court through prosecution and appellant was formally indicted on 04.05.2016 to which he pleaded not guilty and claimed trial. In order to substantiate its version, prosecution produced as many as five (5) prosecution witnesses.
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After completion of the prosecution evidence, statement of the appellant, as envisaged under Section 342, Cr.P.C. was recorded by the learned trial Court. He professed his innocence and pleaded false implication in the case. He neither opted to get his statement recorded under Section 340(2), Cr.P.C., nor did he produce any defence evidence. Upon completion of trial, the learned trial Court having found the case against the appellant to have been proved beyond any reasonable shadow of doubt, convicted and sentenced him as mentioned and detailed above.
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Arguments heard, record perused.
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The main crux of arguments advanced by learned counsel for the appellant is that chain of safe custody of recovered contraband in this case could not be established during the course of trial. While elaborating his arguments learned counsel contended that according to prosecution version the complainant handed over the case property to Altaf Hussain SI (PW.5) but according to him same was handed over to Ghulam Mustafa 447/C, CIA, who was not produced as a witness during the course of trial. In order to evaluate the contention of learned counsel for the appellant, we have minutely scrutinized the material available on record and observed that while making his statement during the course of trial Altaf Hussain, S.I. (PW-5)/Investigating Officer stated that the complainant handed over case property to Ghulam Mustafa 447/C, CIA. Relevant extract out of his statement is reproduced as under:
“Rasheed Ahmad Inspector/complainant handed over case property of this case i.e. two sealed parcels as sample and two sealed parcels as case property of heroine along with sale proceed Rs. 3,380/- to Ghulam Mustafa 447/C, CIA.”
Description: BHowever, surprisingly said Ghulam Mustafa was neither cited as a witness in the calendar of witnesses nor his statement was recorded during the course of trial. When confronted learned Deputy Prosecutor General also frankly conceded this aspect. Hence, as rightly pointed out by learned counsel for the appellant, safe custody of the case property in this case had been compromised. The law on the subject is very much settled that the prosecution is under bounden duty to establish every limb of safe custody of the recovered contraband and in case it is not established beyond doubt, the same cannot be used against the accused. There is force in the contention that the chain of safe custody has not been indubitably established by the prosecution. The mechanism of chain of custody or safe custody and safe transmission of recovered contraband for forensic analysis has been elucidated in an elaborative manner by the august Supreme Court of Pakistan in Mst. Sakina Ramzan vs. The State - 2021 SCMR 451 in following terms:
The chain of custody or safe custody and safe transmission of narcotic drug begins with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug with the law enforcement agency and then dispatch of the representative samples of the narcotic drugs to the office of the chemical examiner for examination and testing. This chain of custody must be safe and secure. This is because, the Report of the Chemical Examiner enjoys critical importance under CNSA and the chain of custody ensures that correct representative samples reach the office of the Chemical Examiner. Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic drug or its representative samples makes the Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused. The prosecution, therefore, has to establish that the chain of custody has been unbroken and is safe, secure and indisputable in order to be able to place reliance on the Report of the Chemical Examiner.
In a recent judgment of august Supreme Court of Pakistan in Qaiser Khan’s Case[1] it has been held as under:
“The law in this regard is settled by now that if safe custody of narcotics and its transmission through safe hands is not established on the record, same cannot be used against the accused.”
It was also held in Zahir Shah alias Shat v. The State through Advocate-General, Khyber Pakhtunkhwa - 2019 SCMR 2004 that:
“This Court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or saf