1. MUHAMMAD HASHIM KHAN KAKAR, J.---The appellant, Nasr-ud-Din son of Nasee r Ahmed, resident of Quetta, was booked in case Crime No.03 of 2019, registered at Levies Station Uthal, District Lasbella on 6th March, 2019 in respect of an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 (the "Act of 1997 ") and after a regular trial he was convicted by the trial Court i.e. Special Judge CNS/Judge Model Criminal Trial Court
(MCTC) Lasbella at Hub to suffer rigorous imprisonment for life with fine of Rs.50,0 00/- (Rupees fifty thousand) and in default whereof to further undergo SI for two months, with benefit of Section 382(b), Cr .P.C.
2. We have heard Messrs Khalil Ahmed Panezai, Muhammad Asif Khilji and Dost Muhammad Kakar , learned counsel for the appellant and Mr. Habibullah Gul, learned Additional Prosecutor General, assisted by Messrs Syed Abdul Jabbar and Syed Abdullah, Deputy Superintendents of Police/ Chemi cal Experts, Forensic Science Laboratory , Balochistan and also perused the available record, which reveals that the appellant Nasr-ud-Din, while driving a Surf vehicle bearing Registration No.BF-1260, was apprehended pursuant to spy information and as a result of search of his vehicle, 67 packets of charas, weighing 80 kilograms was recovered from its secrete cavities.
3. We have straightaway observed that the prosecution has failed to prove its case against the appellant for a number of reasons: i) Firstly , according to the prosecution case, Nasr-ud-Din, appellant, was apprehended at a time when he was driving vehicle No.BF-1260 and was carrying 67 packets of charas, weighing 80 kilograms, 1200 grams each. The FIR as well as the Memorandum of Recovery shows that a consolidated sample of 670 grams had been separated from the 67 packets taken into possession in this case and no separate sample had been secured and tested vis-a- vis the substance, contained in each packet. The consolidated sample of 670 grams of the recovered substance was then tested positively by the Chemical Examiner . It has been held by the Honorable Supreme Court in the case of "Ameer Zeb v., State" (PLD 2012 SC 380) that a sample has to be secured from every bag or packet of narcotic substance recovered in a case and each such sample is to be sepa rately tested by the Chemical Examiner; ii) Secondly , the FSL report Ex. P/3-D, does not purport the necessary protocol and it reads as under:- "6. Chemical Examination: Chemical examination in the respect of above suspec ted material was carried out by applying following chemical tests (with complete protocol).
2. Name of chemical test appliedChemical reagents Suspected material configurationColour observations on analysisConclusion 1-Duquenois Levines' Test.Vanillin Acetaldehyde Conc, Hydrochoric AcidSuspected semi- solid materialViolet blue colour Positives / Confirmed II-P-Dimethy- adminobenzaldehyde-P-Dimethyl- aminobenzaldehyde Ethanol and Sulphuric Acid Red-violet colour -do- During which two gram material from each sample were consumed in the examination process. After chemical examination the remaining samples/material, along with expert opinion report in quadruplicate will be returned to concern L/S Station duly sealed.
7. Conclusion/Opinion : Chemical analysis of suspected material was conducted and finally found that, said all samples/material contained CHARAS' Baked Cannabinoids."
3. The , perusal of aforementioned report clearly manifests that it has been prepared in violation of section 36 of the Act of 1997 and Rules 5 and 6 of the Control of Narcotic Substances (Governm ent Analysts) Rules, 2001. The report does not contain the necessary protocol, as such, cannot be termed to be conclusive proof that the recovered substance was 'charas'. Though the protocol has not been defined in the Act or the Rules, yet the honorable Supreme Court in the case of "State through Regional Director v. Imam (2018 SCMR 2039 ), defined the same in the following words:- "15 "Protocol" means an explicit, detailed plan of an experiment, procedure or test or a precise step-by-step description of a test, including the listing of all necessary reagents and all criteria and procedure for the evaluation of the test data. Rule 6 requires that fedi protocols of the test applied be mut of the Report of the Government Analyst."
4. It is worth mentioning that every test has its protocols, which are internationally recognized and a test without the observance of its protocols has no sanctity . The perusal of record shows that the FSL authorities while determining the status of recovered substance have applied "Duquenois Levincs' Test" with chemical reagents "Vanillin Acetaldehyde ConcHydrochlric Acid". In this connection it would be relevant to mention here that in the year 1986, on the request of Commission, a group of eleven experts and two consultants was convened in the month of September by the Division of Narcotic Drugs in Kuala Lumpur at the invitation of the Government of Malaysia and after detailed deliberations a manual was published by the United Nations Division of Narcotic Drugs. For the guidance of FSL authorities of Balochista n, it would be relevant to make a reference to the protocol of (Duquenois Levine's Test), which reads as under:- "(b) The rapid Duquenois test (Duquenois-Levine test).
5. REAGENTS Solution 1. Five drops of acetaldehyde and 0.4 g of vanillin are dissolved in 20 ml of 95% ethanol.
6. Solution 2. Concentrated hydro chloric acid.
7. Solution 3. Chloroform.
8. NOTE Solution 1 must be stored in a cool dark place and discarded if it assumes a deep yellow colour .
9. METHOD Place a small amount of the suspect material in a test tube and shake with 2 ml of solution 1 for one minute; add 2 ml of solution 2 and shake the mixture and then allow it to stand for ten minutes: if a colour develops add 2 ml of solution 3.
10. RESUL T If the lower (chloroform) layer becomes violet coloured this indicates the presence of a cannabis product."
11. Similarly , in cases of Opium, Morphine and Heroin, the United Nations Internation al Drugs Control Program, has recommended the following methods for testing: - "REAGENT PREP ARA TION Marquls reagent:Add8-1 0 drops of 40% formaldehyde solution to 10 ml of concentrated sulfuric acid.
12. Mecke's reagent:Dissolve 0.25 gm of selections acid in 25 ml of concentrated sulfuric acid.
13. Frohde's reagent:Dissolve 50 gm of either molybdic acid or sodium molydate in 10 ml of hot concentrated sulfuric acid. The freshly prepared reagent should be colourless.
14. Dragendorff's reagent:Solution(1) - Mix 2 gm of bismuth subnitrate, 25 ml of glacial acetic acid, and 100 ml of water.
15. Solution(2)
16. Dissolve 40 gm of potassium iodide in 10 ml of water. Mix 10 ml of(1), 10 ml of(2), 20 ml glacial acetic acid, and 100 ml of water to produce Dragendorff's reagent.
17. Acidifted potassium iodoplatinace reagent:Dissolve 0.25 g of platonic chloride and 5 g of potassium iodide in 100 ml of concentrated hydrochloric acid to create the acidified version.
18. Ferric chloride solution:Dissolve 1.0 gm of ferric chloride in 10 ml of water.
19. Silver nitrate solutionDissolve 0.5 gm of silver nitrate in 10 ml of water.
20. Barium chloride SolutionDissolve 1.0 gm of barium chloride in 10 ml of water.
21. Dilute Ammonia solution:Dilute 375 ml of concentrated ammonia solution to 1 liter.
22. Congo Red solutionDissolve 0.01 gm of Congo Red in 10 ml of water. iii) Thirdly , the prosecution has failed to establish the safe custody of the recovered substance during trial, while not producing Moharrir of the Levies Station. Even safe transmission of the samples of the recovered substance from the local Levies Station to the office of the Chemical Examiner had not been proved by the prosecution. As per report Ex-P/3-A, the alleged recovered materials were handed over to the, FSL authorities by one Naseer Ahmed Tehsildar but it is very strange to observ e that said Naseer Ahmed while recording his statement as PW-3 has failed to utter a single word in this regard. It has already been declared by the Hon'ble Supreme Court in the case of "State through Regional Director ANF v. Imam Bakhsh ", (2018 SC 2039) , that in a case where safe custody of the recovered substance is not established by the prosecution then it cannot be held that the prosecution had succeeded in establishing its case against an accused person. iv). Fourthly , it is case of the prosecutio n that the narcotic substance in this case was recovered from secret cavities of the vehicle, which was allegedly driven by the appellant as such, it was, thus, incumbent upon the prosecution to establish the presence of such cavities, but no such evidence worth its name had been brought on record in this respect. The recovery witness i.e. P W-2, Abdul Razzaq, has admitted the absence of secret cavities in the body of vehicle during the course of cross-examination.
4. It is also worth mentioning that appellant Nasr-ud-Din is teacher of a religious institution at Noshki and having knowledge about a number of check posts on national highway of different law-enforcing agencies and stoppage of vehicle on the check posts for the purpo se of checking, as such, it does not appeal to a prudent mind that the appellant will drive a vehicle without license and registration papers. having contraband.
23. For what has been discussed hereinabove, this appeal is allowed, the conviction and sentence of the appellant recorded by the learned trial court vide impugned judgment dated 20th September , 2019 in Case No. 72/2019 is set aside and while extending the benefit of doubt, the appellant is acquitted of the charge under section 9(c) of the CNS Act, 1997, arising out of FIR No. 3/2019 Levies Station Uthal District Lasbella. The appellant, being in custody , should be released forthwith if not required in any other case.