RAHMAT HUSSAIN JAFFERI, J.-This order will dispose of application for cancellation of bail filed by the Special Prosecutor ANF. On 10-3-2004 learned Judge Special Court-II, Control of Narcotic Substances, Karachi Division, granted bail to the respondent in Special Case No, 98 of 2004. The brief facts of the case are that on 16-9-2000 at 4-00 p.m. A.N.F. Police secured 10 kgs. Of heroin from the possession of the respondent who was sitting in a car near Embassies Hotel, Shahrah-e- Faisal Karachi. The trial Court granted the bail to the respondent on the grounds; firstly, that no notice was served upon the respondent before destruction of the property; and secondly, when the said order was passed, the property was not produced before the Court as required under section 516-A, Cr.P.C.
2. The learned Special Prosecutor has stated that the grounds on which the bail was granted require deeper appreciation of evidence therefore the same were not required to be considered at the bail stage; that on the same grounds the trial Court had already dismissed the bail application of the respondent; that before the destruction of the property samples were taken from it which will represent the whole property by virtue of third proviso to section 516-A, Cr.P.C. That the non-service of notice before the destruction of property will be properly examined when the respondent put his case before the trial Court; that the physical production of the case property is not necessary in each and every case; that the huge property of 10 Kgs. Was in the custody of the Court but for safety purpose the same was lying in the property room of the police station as no property room is provided to the Court; that the property can be produced before the Court as and when the Court orders for it's production, therefore, the respondent was not entitled for the concession of bail. He has requested for the cancellation of bail.
3. On the other hand the learned advocate for the respondent has stated that the trial Court was required to issue a notice to the respondent before the destruction of the property but the said notice was not issued to him, therefore, his valuable rights were infringed. He has relied on cases of Sayed Karim v. Anti-Narcotic Force PLD 2003 Karachi 606 and Jamil Khan Afridi v. State MLD 2004 page 542. He has further stated that an order under section 516-A, Cr.P.C. Can be passed when the property is produced before the Court as clear from the language used in the said section; that the property was not produced before the Court when the order for the destruction of the property was passed but at that time it was lying in A.N.F. Police station; that the above mentioned defects in the case are such which have prejudiced the case of the respondent, therefore, he is entitled for the concession of bail that was rightly allowed to him by the trial Court. He has further stated that earlier bail application was dismissed before the above mentioned authorities and thereafter on the basis of the said authorities new ground was available to the respondent as such he had moved the second bail application which was ultimately granted by the trial Court. He has supported the impugned order.
4. We have given due consideration to the arguments, perused the record of this case very carefully and the relevant provisions of law. In order to appreciate the arguments of the counsel it will be advantageous to reproduce section 516-A, Cr.P.C. That reads:- "When any property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to a speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of: Provided that, if the property consists of explosive substances, the Court shall not order it to be sold or handed over to any person other than the Government Department or officer dealing with, or to any authorized dealer in, such substances: Provided further that if the property is dangerous drug, intoxicant, intoxicating liquor or any other Narcotic substance seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or any other law for the time being in force, the Court may, either on an application or on its own motion and under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf: Provided also that such samples shall be deemed to be whole of the property in any inquiry or proceedings in relation to such offence before any authority or Court."
5. The words "produced before any Criminal Court" mentioned in the section are very significant.
The meaning of the word "produce" has been given in "The New Shorter Oxford English Dictionary" as under:-- "Produce. Bring forward or out, esp. For inspection or consideration, present to view or notice".
6. Now it is to be seen what the word "produce" in connection with the remaining words of above expression actually means and what interpretation a Court may put to this expression. If the expression "produced before any Criminal Court" is allowed to mean that the property must be produced before the Court, then there may be circumstances, situations and cases in which it may not be possible or difficult to fully comply with the same. There might be cases in which the property may be in thousands of tons of various commodities including Narcotics Substance, gigantic container, completely damaged 20-wheeler truck or car that cannot be moved due to accident or otherwise, very large number of trees cut down from forest and so on and so forth. In the above mentioned cases or similar types of other cases involving huge quantity of property, is it possible to physically produce such property before the Court? The answer will be in negative or at least it will be difficult to physically produce the property and fully comply with the provisions of section 516-A, Cr.P.C. Can it be said that the intention of the Legislature was such? The simple answer will be in negative.
7. After considering all the surrounding circumstances and particularly tremendous development in every field due to advancement of Science, Technology and other sources where large and long vehicles, ships etc. Are produced for transporting goods, instruments and other materials, we are of the considered view that the expression produced before any Criminal Court" should not be interpreted rigidly and narrowly but it should be interpreted liberally so as to cover the A cases in which it cannot be possible or at least difficult to physically produce the property before the Court.
In such a situation, the Court may, instead of directing the property to be produced physically in the Court, direct that the property be put in charge of any person.
8. Above view is supported by Supreme Court of India in a case Basava v. State of Mysore reported in AIR 1977 SC page 1749. At page 1751 it has been observed as under:-- "The object and scheme of the various provisions of the code appear to be that where the property which has been subject-matter of an offence is seized by the police it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay.
There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the action of the police officers in every case where it has taken cognizance.
A production before the Court does not mean physical custody or possession by the Court but includes even control exercised by the Court by passing an order regarding the custody of the articles."
9. Even otherwise under section 170 of Cr.P.C. After completion of the investigation if the Investigating Officer finds that there is sufficient evidence or reasonable ground for forwarding the accused before the Magistrate for his trial, then he has to submit a police report within the meaning of section 173 of Cr.P.C. And shall send any weapon or other articles which it may be necessary to produce before the Magistrate. Production of the property before the Magistrate at the time of submission of the police report is mandatory provision which the Investigating Officer is required to comply with. If the property within the meaning of section 170 of Cr.P.C. Is sent to the Magistrate then the Magistrate has to keep the property in the property room of the Court or if he has no such arrangement for keeping the property then he may direct any person to keep the custody of the said property. It has been brought to our notice that the Special Court-I, Control of Narcotic Substances, Karachi Division was established about four years back in improvised three rooms without providing a property room or strong room for keeping the properties of the cases.
The special Court-II of Control of Narcotic Substances Karachi Division has been established about few months back. The position is same with this Court also. In the beginning all the cases of Karachi Division were transferred to the Special Court-I. Large number and huge quantities of Narcotic Substances are involved in the cases. All the properties of the cases are being kept in the property rooms of P.S. Or Malkhana of Karachi Division. It is not out of place to mention that when Government establishes a Court, then before posting a Judge in that Court, suitable premises may be provided accommodating all the requirements of the Court including the property and strong rooms. Had the Government considered this aspect of the matter, then this problem would have not occurred and mandatory provision of section 170, Cr.P.C. Would have been complied with. It is hoped that in future when a Court is established, then before posting a Judge premises catering all the requirements of the Court may be provided.
10. In the present case huge quantity of 10 kgs of heroin is involved. The Court has no property room therefore; it is but natural that the property is kept in the property room of A.N.F. Police. We have examined the challen/police report which shows that in the column of property two properties have been shown: (1) 10 kgs of heroin, (2) a car bearing No, ABF 328. Under the said column, reader of the Court made an endorsement "Received". We have also gone through the case diaries of police files and find that on the date when the property was secured and brought to the police station then it was deposited in the property room of the police station which was allowed to remain there till the time the property was destroyed. Furthermore when the Special Judge, Control of Narcotic Substances took the samples of the property, he examined the property that was lying there duly sealed. The said seals were broken and then samples were prepared in his presence, which were 'also sealed by him. Thereafter the remaining property was destroyed alongwith the properties, of other cases under the supervision of the learned Judge. Thus, it is clear that the property secured in this case was available in the property room of the A.N.F. Police station where the learned Judge himself went, verified the same and prepared the samples from the property.
The samples so prepared will represent the whole property by virtue of last proviso to section 516- A, Cr.P.C. Thus the property was/is under the control of the Court.
11. In this case, charge has been framed. The prosecution has to examine witnesses through whom the samples prepared by the learned Judge from the property are to be produced in the evidence during the trial. Till that time, it is not known what will be defence of the respondent. The question of non-service of notice at the time of passing of order for the destruction of property can be properly examined at the time of final disposal of the case in the light of defence taken by the respondent and the trend of cross-examination conducted to the witnesses. At this stage, it will be premature to give any finding. Concerning the non-service of such notice. The Honourable Supreme Court of Pakistan in a case of Ali Mohammad v. State reported in PLD 2003 SC 54 considered a related point in the light of the cross-examination conducted by the accused to the witnesses. Presently there is evidence of recovery of 10 kgs of heroin apparently secured from the possession of the respondent.
12. Learned trial Court has relied upon two authorities from Indian jurisdiction viz. AIR 1963 Rajisthan page 13 and AIR (29) 1942 Bombay page 42 and one from Pakistani jurisdiction of Single Bench viz. 1972 PCr.LJ 604 on the proposition that production of the property before the Court is essential for passing an order under section 516-A, Cr.P.C. However, the Supreme Court of Indian in the case of Basava (supra) took a different and liberal view, therefore, the decision of the Supreme Court would prevail over the decision of High Courts of India. We have also formed the opinion that the section 516-A, Cr.P.C. Should be interpreted liberally. As regards the authorities relied upon by the learned advocate for the respondent in which a rule has been laid down that before destruction of the property a notice should be given to the accused. We have already observed that the said point will be appreciated at the time of final hearing.
13. After considering the material available on the record, we are of the considered view that the learned trial Judge was not justified in granting the bail to the respondent in the circumstances of the present case. Therefore, the to the respondent is cancelled. However, the prosecution is directed to produce the witnesses who are employees of A.N.F. Karachi, before the trial Court within a period of two months so that the trial Court may complete the case within the said period. The impugned order is set aside. The application is allowed.
Bail cancelled.