MUHAMMAD AMJAD RAFIQ, J.---Through this appeal under section 48 of the Control of Narcotic Substances Act,. 1997 (CNSA, 1997), the appellant/ State has assailed the acquittal of Zahid Latif and Haji Azhar Mahmood/ respondents Nos.1 and 2 respectively recorded by the learned trial court vide judgment dated 13.03.2010 in case FIR No.8 dated 10.04.2007 registered at Police Station, ANF, Faisalabad, for an offence under section 9(c) of the CNSA, 1997.
2. It was 10th day of April, 2007, when on a tip off, ANF raiding team headed by Sardar Aqeel Zahid, Assistant Director (PW-05) prompted to catch the unholy possession of contrabands at Latif Medical Store; it was about 04.30 pm a Mitsubishi Car bearing Registration No.LZZ-1898 came there and respondent No. 1/ Zahid Latif was apprehended. From the rear seat of the car, two cartons were recovered, one containing BUPRENORPHINE Injections (P-1) and the other was containing BUPRENORPHINE Tablets (P-2); on inquiry the respondent led to the recovery of two cartons of intoxicant syrup (P-3/1-2) (Concentrated Opium Liquid), from inside the Latif Medical Store; each carton was containing one hundred bottles (total 200 bottles) each bottle containing 10 gram liquid; in this way two hundred bottles were containing 20-kg liquid; from each carton one bottle of syrup was taken as sample for chemical analysis; all the recovered substance was taken into possession vide Recovery Memo Exh.
PB; out of the recovered BUPRENORPHINE injections 2800 in numbers (P-1/1-2800), ten injections were separate, broken and 10 ml liquid was collected for chemical examination and took all the material into possession vide Recovery Memo Exh. PC; out of the recovered 5000 tablets (P-2/1-5000) total weighing 3 Kg; ten tablets were separated as sample, sealed them into a parcel and took all the substance including car P-7 into possession vide Recovery Memo Exh. PD. He further disclosed that he purchased the intoxicant syrup from Haji Azhar Mahmood/ respondent No. 2 whereas took the injections and tablets from Umar Medicine Company , Talha Medicine Company and Saimal Enterprises, Chenab Market Madina Town, Faisalabad.
3. Argument heard. Record perused.
4. The case of Haji Azhar Mahmood/ respondent No.2 is distinguishable to Zahid Latif/respondent No.1; the only allegation against Haji Azhar Mahmood/respondent No.2 is that Zahid Latif/ respondent No.1 at the time of his arrest made a disclosure that he used, to purchase intoxicant syrup from Haji Azhar Mahmood / respondent No.2. It is established from record that at the time of raid Haji Azhar Mahmood/ respondent No.2 was detained in jail in another case FIR No.29/2007. This fact is admitted by Siddique Gohar Khan, Assistant Director (PW-04) in his statement. Muhammad Shafique/ ASI (PW-02) deposed that at the time of arrest of the respondent No.2 he was accompanied by the complainant and Arrest Memo Exh. PB was signed by him besides Rashid Mahmood/C (PW- 06) but Rashid Mahmood/C (PW-06) did not utter any word about the arrest of respondent No.2. Siddique Gohar Khan, Assistant Director (PW-04) admitted during cross-examination that he neither investigated respondent No.2 nor any recovery was effected from him. In the circumstance, Haji Azhar Mahmood/ respondent No.2 was rightly acquitted by the learned trial court.
5.So far as the case of the prosecution against Zahid Latif/ respondent No.1 is concerned, the learned trial court after thrashing the whole prosecution evidence and its pros and cons came to the conclusion that injections when de-sealed in court were found having label of BUEPRON manufactured by Sami Company with Batches number , drug number and manufacturing number printed on it. It was admitted by Sardar Aqeel Zahid, Assistant Director (.PW -05) that he had not contacted the manufacturing company . Learned trial court observed that branded tablets and injections recovered from the possession of the respondent and retaining such like drugs manufactured by National Pharmaceutical Companies is not an offence punishable under section 9(c) of CNSA, 1997. It was further observed that it may be the matter punish able under the Drug Act. The learned trial court was finally of the opinion that from the facts and circumstances of the case, to the extent of recovery of branded tablets and injections from Zahid Latif/ respondent No.1 no of fence under sections 6, 7 and 8 of the (CNSA, 1997) is made out.
6. The prosecution case against Zahid Latif/ respondent No.1 regarding recover y of two cartons of contraband syrup containing 200 bottles on his pointing out from the shop was rejected by the learned trial court while observing that when the syrup was recovered from Latif Medical Store, Zahid Latif was not already present rather many persons were working there.
7. We have given anxious consideration to the reasoning arrived at by the learned trial court; we are of the view that learned trial court has wrongly held that possession of such drugs is not an offence under CNSA, 1997. We have perused and examined the relev ant provision of the Act and observed that BUPRENORPHINE is a Psychotropic Substance and is mentioned in schedule issued under section 2(za) of CNSA, 1997 at serial No. 7, whatever the name a substance is labelled by a manufacturing company on the injection, tablets or syrup is matter for the purpose of trading and cony rights protection; therefore, it does not eject such substance from the definition of Psychotropic Substance. Admittedly on de-sealing of case property when instead of BUPRENORPHINE, the name Buepron printed on injection was found, it does not change its status unless it is proved that both are different drugs. Hence, Prosecution has proved the recovery o BUPRENORPHINE Injections and Tablets.
8. BUPRENORPHINE Injections and Tablets and opium concentrated Syrup are regarded in the Act as manufactured drugs as per section 2(q) of the Act which is as under; "manufactured drug" includes- All coca derivatives, medicinal hemp, opium derivatives, cannabis in any form and any mixture of stalks and flowering or fruiting tops of the Indian hemp plant (cannabis sativa L.), Acetic Anhydride; and Any other narcotic substance which the Federal Government may by notification in the official Gazette made in pursuance of recommendations of any International Convention or otherwise, declared to be a manufactured drug; and all manufactured drugs fall within the definition of Narcotic Drug which is defin ed in Section 2 (s) of the Act as under; "narcotic drug" means coca !oaf, cannabis, heroin, opium, poppy straw and all manufactured drugs ; {Underline supplied for Emphasize}
9. It is clear from above discussion that learned trial court has erred in holding that above substance does not fall under CNSA, 1997 and suggesting that Drug Court has jurisdiction in the matter is beyond comprehension in the light of section 74 of CNSA, 1997 which is as under; "If an offence punishable under this Act is also an offence ire any other law for the time being in force; nothing it that law shall prevent the of fender from being punished under this IB Act."
10. Other ground taken by learned trial court that Sardar Aqeel Zahid, Assistant Director (PW-05) had not contacted the manufacturing company for verification of batches, drug or manufactured numbers of contrabands; suffice it to say that prosecution is not obliged to bring on record such information. The burden of proof on prosecution is to prove possession and nature of contrabands; legal burden to prove that such contrabands are in possession under a valid license is on the accused as contemplated under section 29 of CNSA, 1997, which Zahid Latif/ respondent No.1 has failed to discharge; hence observation of trial court is not based on any legal premises.
11. In this case, the prosecution has also established the chain of events with respe ct to safe custody of the alleged recovered contraband from Zahid Latif/ respondent No.1 from the very inception to the office of Chemical Examiner .
12. The only question that has an overall impact on this case is how it would be determined that material recovered from the possession of Zahid Latif (respondent) was Psychotropic Substance or Manufactured Drug. The law says as embodied in sections 35 and 36 of CNSA, 1997 that it would only be determined by the Government Analyst appointed in Federal or Provincial Narcotics Testing Labs and his report shall be admissible in evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted, be conclusive. The Honourable Supreme Court has held that the report of Analyst must contain the protocols of test applied for examination of contrabands as contemplated under Rule 6 of Control of Narcotic Substances (Government Analyst) Rules, 2001, and application of protocols becomes more essential particularly when the recovered material is found as Psychotropic substance or controlled substance.
13. Offence under section 6 of CNSA, 1997 is attracted only if possession etc. of Narcotic Drug, Controlled Substance or Psychotropic substance is proved; we have examined the report of Chemical Examiner , Exh. PC which lacks application of requisite protocols; therefore, despite the fact that prosecution has proved the recovery , it fails to substantiate that recovered mate rial was Psychotropic Substance, controlled substance or manufactured drug falling with in the definition of Narcot ic drug in order to attract section 6 which is punishable under section 9 of CNSA, 1997. Hence, prosecution has failed hopelessly to bring home the guilt of the Zahid Latif and Haji Azhar Mahmood/respondents Nos.1 and 2 respectively. We therefore, while altering the findings of learned trial court maintained the acquittal of both the respondents. The instant appeal being devoid of any merit is dismissed. The State through Regional Director ANF v. Inam Bakhsh and others (2018 SCMR 2039) and Qaiser Javed Khan v. The State through Prosecutor General Punjab, Lahore and another (PLD 2020 SC 57)