Muhammad Saeed son of Ghulam Sabir, the petitioner by filing the instant petition seeks post- arrest bail in case F.I.R. No. 16, dated 31-12-2005, registered with Police Station Anti-Narcotics Force, Faisalabad for offences under Section 9(c)/15 of the Control of Narcotic Substances Act, 1997.
2. The case of the prosecution as it unfurled in the F.I.R., registered at the instance of .Asmatullah Khan, Assistant Director, Anti-Narcotics Force, Faisalabad, was that secret information had been received about trafficking of Buprenorphine injections on 31-12-2005; a raiding party was formed, which included Asmatullah Khan, Assistant Director, about 10-00 a.m., a person riding Yamaha motorcycle bearing Registration No. FDN9192 came at Chowk Millat with a bag dangling on his shoulder, he was apprehended by the raiding party; he disclosed his name as Ashfaq Ahmad, resident of Guru Nanakpura, Faisalabad; a search of the bag yielded 2500 Buprenorphine injections; during investigation, the aforesaid Ashfaq Ahmad also disclosed that he had procured the said injections from Muhammad Saeed (petitioner) son of Ghulam Sabir, resident of Peoples Colony; Ashfaq Ahmad also led the raiding party to the house of the petitioner, and the latter had been apprehended by the raiding party outside his house from 'inside a Toyota car; from a search of the car, three cartons containing injections and nine plastic bottles containing Buprenorphine chemical were recovered; out of the three cartons, 9000 injections (3000 injections from each carton) were recovered; the petitioner also disclosed that he had already delivered Buprenorphine injections to Arshad Ali resident of Peoples Colony and on his pointing out, a raid was conducted at the house of said Arshad Ali, however, one unknown person, who was holding a shopper bag in his hand, ran away on seeing the raiding party by throwing the shopper bag; the search of the said shopper bag yielded another 1500 unlabelled injections and two bottles of Buprenorphine chemical. Resultantly, the instant F.I.R. had been recorded.
3. After his arrest, the petitioner applied for post-arrest bail, but his plea did not find favour with the learned Special Court C.N.S., Lahore, which proceeded to dismiss his application vide order, dated 2-6-2006. Hence, the instant petition.
4. Mr. Maqbool Elahi Malik, assisted by Sh. Muhammad Umar Riaz and Sh. Muhammad Nawaz, the learned counsel for the petitioner argued that it was not understandable as to how the raiding party had come to know that the alleged contraband injections/ampoules contained Buprenorphine, especially when admittedly there were no labels on the same and as such the prosecution story is rendered doubtful; that there was a delay of nine days in sending the samples to the Chemical Examiner, whereas according to Rule 4(2) of the Control of Narcotic Substances (Government Analysis) Rules, 2001, the sample ought to have been dispatched to the Chemical Examiner within seventy-two hours, therefore, this belated dispatch of samples had vitiated the entire proceedings against the petitioner, that because the contraband allegedly recovered from the petitioner was in liquid form, therefore, as per Section 3 of the Control of Narcotic Substances Act, 1997, the Chemical Examiner was required to determine the actual percentage of Buprenorphine, which has not been done in the instant case; that a perusal of the F.I.R. reveals that as the weight of the alleged contraband had been shown in kilograms, the presumption is that the same had been recovered in powder form, whereas the report of the Chemical Examiner, indicates that the alleged contraband was in liquid form, thus, this circumstance also renders the case of the prosecution rather doubtful; that the protocol applied by the Chemical Examiner in carrying out analysis of the contraband has not been mentioned in his report, which makes the case of the petitioner one of further inquiry; that the contraband injections/ampoules are openly available in the market and are easily accessible to everyone, therefore, at best the case of the petitioner falls under the provisions of Drugs Act, 1976 and not the Contiol of Narcotic Substances Act, 1997; that as the co-accused of petitioner, namely, Aftab and Yasin had been allowed bail by the learned Special Court, the petitioner is also liable to the said concession keeping in view the rule of consistency.
5. On the other hand, Syed Ehtesham Qadir Shah, the learned Special Prosecutor for And-Narcotics Force, argued that there was no requirement to determine the percentage of the contraband; that the procedure adopted by the seizing authority was strictly in accordance with the law; that the report of the Chemical Examiner is perfectly legal and admissible in evidence and that the delay of eight/nine days in sending the samples to the Chemical Examiner is not fatal to the prosecution case.
6. We have heard the learned counsel for both the sides and have also gone through the record brought by Ayaz Al Khan, Deputy Director (Pharmacist) ANF (Punjab).
7. It has been observed that Section '3 of the Control of Narcotic Substances Act, 1997 authorizes Federal Government to make rules for prescribing the methods by which percentage in the case of liquid preparations shall be calculated, but this is meant only, according to Section 3 itself, for the purposes of liquid preparations as described and defined in Section 2(g), (h), (t) and (u) of the Control of Narcotics Substances Act, 1997. It would be advantageous to reproduce the said definitions:-- "2(g)"coca derivative" means.--(i) crude cocaine, that is, any extract of coca leaf which can be used directly or indirectly for the manufacture or production of cocaine; (ii)ecgonine, that is, leavo-ecgonine having the chemical formula C9, H15. NO3 1115 NO3 H2O and all chemical derivatives of leavo-ecgonine including benzoyl ecognine from which it can be recovered; (iii)Cocaine, that is methyl-benzyl-leave-ecgonine having the chemical formula C17 1121 N04 and its salts; and all preparations containing more than 0.1 per cent. cocaine; 2(h) "coca leaf' means.--(i) the leaf of the coca bush except a leaf from which all ecgonine, cocaine or any other ecgonine alkaloids have been removed; (ii)any mixture thereof with or without neutral material, but does not include any preparation containing not more than 0.1 per cent. of cocaine; 2(t)"opium" means.--(i) poppy straw that is to say all parts of poppy plant (papaver somniferum or any other specices of Papaver) after mowing, not being seeds; (ii)the spontaneously coagulated juice of capsules of poppy which has not been submitted to any manipulations other than those necessary for packing and transport; and (iii)any mixture with or without natural materials of any of the above forms of opium, but does not include any preparation containing not more than 0.2 per cent. of morphine; 2(u) "opium derivative" includes--(i) medicinal opium, that is opium which has undergone the process necessary to adapt it for medicinal use; (ii)prepared opium, that is any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked; (iii)morphine, that is, the principalalkaloid of opium having the chemical formula C17H19 NO3 and its salts; (iv)diacetylmorphine, that is, the semi-synthetic substance, also known as diamorphine or heroin having the chemical formula C21 H23 N05 and its salts; and
(v) all preparation containing more than 0.2 per cent. of morphine, or containing any diacetylmorphine; 'It would be seen that Buprenorphine, which has allegedly been recovered from the petitioner, does not fall in any of the definition of reproduced above. Section 2(za) of the Control of Narcotic Substances Act, 1997 defines "psychotropic Substance" as under:- "Psychotropic Substance" means the substances, specified in the Schedule to this Act and such substances as the Federal Government may, by notification in the official Gazette, declare to be a psychotropic substances."
Buprenorphine features at Serial No. 7 of the Schedule attached to the Control of Narcotic Substances Act, 1997 and is, therefore, admittedly a psychotropic substance. Thus, it is absolutely clear that psychotropic substances appearing in the Schedule to the Control of Narcotic Substances Act, 1997 are not required to be subjected to calculation of percentage as required by Section 3 of the Control of Narcotic Substances Act, 1997. The Legislature, it appears has deliberately excluded clause (za) from Section 3 (ibid) for the purpose of calculating percentage in liquid preparations, so Section 3 (ibid) is not applicable in this case.
8. It has also been observed that the objection of the learned counsel for the petitioner that the recovered substance was sent in grams, whereas the Chemical Examiner has examined the same in milliliters, is of no force because the Chemical Examiner being the Expert on the subAt has to examine the substance according to the permissible test and formula that he wishes to apply, so for this purpose he has to convert grams into milliliters, thus, there is neither any violation of any rule nor is there any doubt about the recovered substance.
9. Insofar as the alleged violation of rules pointed out in respect of delayed dispatch of samples, suffice it to say that rules are ordinarily directory in nature and not mandatory, inasmuch as the rules do not provide for, consequences in case they are not strictly adhered to Even if these rules, anywhere, bind down the Investigating Officer to send the samples within a specified time, then a little delay in sending the samples is of no consequence, unless grave prejudice is shown to have been occasioned. So mere delay in dispatching the recovered substance to chemical laboratory would not make the prosecution case doubtful. Reliance in this behalf can be placed on the cases of Muhammad Ali v. The State 2002 SD 286 and Mst. Grana v. The State 2006 M LD 361, wherein it has been held that the rules are directory and not mandatory and could not control the substantive provisions of Control of Narcotic " Substances Act, 1997 and the same cannot be applied or interpreted in such a manner that the express provisions of Control of Narcotic Substances Act, 1997 are frustrated. .
10.As far as the objection of the learned counsel for the petitioner that the report of the Chemical Examiner is not strictly in accordance with the provisions of Sections 34 and 35 of the Control of Narcotic Substances Act, 1997, suffice it to say that Section 47 of the Control of Narcotic Substances Act, 1997 provides that the provisions of the Criminal Procedure Code in respect of trials before the Special Court under the Control of Narcotic Substances Act, 1997, would be applicable. Initially Section 510, Cr.P.C. made the report of the Chemical Examiner, Serologist etc. admissible in evidence, but through the Law Reforms Ordinance, 1972, the above section was amended by adding a Proviso thereto. Section 510, Cr.P.C. in its present form reads as under: "Report of Chemical Examiner, Serologist etc. Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or of the Chief Chemist of Pakistan Security Printing Corporation, Limited or any Serologist, Finger-print Expert or Fire-arm Expert appointed by Government, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code: Provided that the Court may if it considers necessary in the interest of justice summon and examine the person by whom such report has been made."
'It is thus, clear that the Legislature has deliberately added the above, proviso to cover a situation like the one in the instant case where the report is being dubbed as meagre, cryptic and incomplete. In a situation like this, the Court has ample power to summon and examine the Expert.
It is well-settled principle that bail applications are always decided on the basis of tentative assessm ent of the Material placed before the Courts and no exhaustive appraisal thereof can be undertaken. If an accused person is unhappy or dissatisfied about the report of the Chemical Examiner and finds the same to be incomplete meagre or cryptic as in the instant case, he is not without a remedy. He may have the Chemical Examiner summoned and examine him in that respect. At bail stage, the report of the Chemical Examiner, which is in the positive, having detected Buprenarphine, is prima facie sufficient to connect the petitioner with the offence and as he was found in possession of the said psychotropic substance.
11. Insofar as the objection of the learned counsel for the petitioner that the Chemical Examiner was not notified by the Federal Government is concerned, we are of the view that it has no substance because by virtue of Notification No. SRO. 596(I)/97 issued by the Federal Government, all.
Narcotics Testing Laboratories set up by the Provincial Government have been declared to be the Federal Narcotics Testing Laboratories for the purpose of Control of Narcotic Substances Act, 1997.
Thus, the report of the Chemical Examiner in the instant case is a report contemplated under Section 34 of the said Act. Even otherwise this report is admissible as per scheme of Section 47 of the Control of Narcotic Substances Act, 1997 read with Section 510, Cr.P.C. Reliance in this behalf is placed on the case of Tasuwwar Hussain v. The State 2001 PCr.LJ 879. According to the report of the Chemical Examiner Buprenorphine has been detected from the recovered substance, which is a highly lethal drug and can cause drug dependence, but can also lead to death from an overdose, especially if it is injected with tranquilizer. The main properties of "Buprenorphine", ,some of which have been stated hereinabove, were described for the first time in United States of America in 1973 by Alan Cowan and John Lewis. This description also coincides with the research carried out at Department of Pharmacology and Toxicology, University Hospital, Limoges, France and Laboratory of Toxicology, Institute of Forensic Medicine, Strasbourg, France. This drug can dangerously increase the effects of severe breakdown of nervous system resulting in severe drowsiness.
Buprenorphine is similar to other drugs such as morphine, codeine and heroin and admittedly its use can cause drug dependence. So keeping in view the dangerous effect of the said drug i.e. Buprenorphine, one should keep in mind that enactment of Control of Narcotic Substances Act, 1997 was necessitated for reasons and the object to consolidate the narcotic laws and one cannot shut one's eyes to the despicable business of drug pushers, who for their monetary gains have caused incalculable loss to the society in general. In these circumstances, we are of the view that the persons involved in immoral business of drugs are to be discouraged and the Court should not come to their rescue by entertaining their bail applications on academic questions or by giving them the benefit of bail by adopting a favourable interpretation of the Statute. Even at bail stage, legality and technicality of procedure should not be accorded an in-depth consideration because as already stated elsewhere bail applications are only entertained on the basis of material available on the record.
12.In the instant case, the petitioner has produced no legal justification for keeping in possession such a huge quantity of "Buprenorphine" injections alongwith liquid in plastic bottles, so the prosecution has prira facie fully established his possession of such lethal drug rendering the case of the petitioner to be covered under clause (c) of Section 9 of the Control of Narcotic Substances Act, 1997 and in suchlike situation, bar contained in Section 51 of the Control of Narcotic Substances Act, 1997 to the grant of bail shall be attracted with full force.
13.For what has been discussed hereinbefore, we are of the view that as the petitioner is prima facie connected with the offence, which entails deaths penalty, he is not entitled to the concession of post-arrest bail.
14.Resultantly, there being no merit in this petition, the same is dismissed.
15.Before parting with this order, we would like to add that observations made hereinabove are tentative in nature and are not designed to influence the course of the trial.