PESHAWAR: Peshawar High Court has ruled that it was mandatory to follow the prescribed protocols during chemical analysis of seized contraband at the Forensic Science Laboratory (FSL) and failure to do so would be a violation of the relevant law and rules.

A bench consisting of Justice Fazal Subhan and Justice Dr Khursheed Iqbal rejected a state appeal against acquittal of an accused, arrested on charges of carrying narcotics, by a trial court in Lakki Marwat district in 2020.

The bench ruled that failure to adhere to the prescribed protocols during the chemical analysis of the contraband at the FSL disqualified it to be called as a report under section 36 of the Control of Narcotics Substance Act (CNSA), 1997, preventing it from being treated as conclusive proof of the recovery of a narcotic substance from the accused person.

The bench observed that the most significant lacuna in the prosecution’s case was its failure to follow the necessary protocol during the chemical analysis of the seized narcotics.

PHC rejects govt appeal against acquittal of accused

The bench discussed in detail section 36 of the CNSA dealing with reports of chemical analyst to whom sample of any narcotic drug was submitted for test and analysis and Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001.

The said rule 6 provides that after test or analysis the result thereof together with full protocols of the test applied, should be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II.

The bench observed that section 36 of the CNSA delineated the steps that a government analyst must adhere to when handling samples of narcotic drugs, psychotropic substances, or controlled substances submitted for testing and analysis.

“It mandates that upon receiving a sample for testing, the Government Analyst must furnish a signed report quadruplicate in the prescribed form to the individual or entity submitting the sample. Additionally, one copy of the report must be forwarded to the designated authority as prescribed by law,” the bench observed.

“At the same time, Rule-6 of the rules, in the context of section 36, elucidates the procedure for reporting the results arising from tests or analysis conducted by the Government Analyst. It serves as a complementary component to section 36, offering more nuanced insights into the content and delivery of the test results,” the bench observed.

It further observed that essentially, the rule introduced additional procedural specifications regarding the content and delivery of test results.

“It ensures that the sender expeditiously receives not only the results, but also a comprehensive account of the testing protocols employed by the Government Analyst. This interplay between Section 36 and Rule-6 establishes a robust framework governing the reporting of test results in the broader context of the Act.”

About the present case, the bench observed that it transpired that the spaces on the back of the FSL report designated for relevant protocols and tests were not only blank, but also crossed out from top to bottom.

“This constitutes a complete violation of Rule-6 as outlined in the rules,” the bench ruled.

Referring to an earlier judgment of Supreme Court, the bench observed that the government analyst must refer to necessary protocols, mention applied tests, and present their results in the report.

Furthermore, the bench pointed out that another material weakness in the prosecution’s case was the delayed dispatch of the samples’ parcels to the FSL as these were dispatched after 13 days of the alleged recovery, with no explanation at all.

The bench ruled that upon thorough scrutiny of the prosecution evidence, it had arrived at the inescapable conclusion that despite the recovery of significant narcotic substances, the prosecution had failed to substantiate the charges against the respondent (accused).

The accused in the case was allegedly arrested by police in the jurisdiction of Naurang police station in Lakki Marwat on Nov 28, 2017, when he was travelling in a car. The police claimed of recovering 14kgs charas from the said vehicle.

Published in Dawn, December 4th, 2023

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