This single order shall dispose of Crl. Misc. No.3179-B-2015 filed by Syed Nazir Hussain Shah, petitioner and Crl. Misc. No.3347-B-2015 filed by Mst Naseem Akhtar, petitioner for grant of Post Arrest Bail as both these petitions have arisen from the same case FIR No.51 dated 15.08.2014 under sections 9(c) & 15 of The Control of Narcotic Substances Act, 1997 registered at Police Station Anti Narcotic Force, Lahore.
2. Precise allegations against the present petitioners are that on spy information, ANF police party raided the Dry Port, Prem Nagar, Kasur and started checking the shipment of the petitioners and on disclosure by Mst Naseem Akhtar, petitioner 12000 kilograms prohibited chemical HCL filled in 400 canes lying in the shipment container No.UACU3455850 available at the said Dry Port, was recovered whereas 12 kilograms heroin was got recovered on the pointation of Syed Nazir Hussain, petitioner from upper portion of his house.
3. Heard. Record perused.
4. Both the petitioners were apprehended at Dry Port World Prem Nagar, Kasur. Recovery of HCL chemical weighing 12000 kilograms from the shipment container belonging to the petitioners' company was affected on the pointation of Mst Naseem Akhtar petitioner. Hydrochloric Acid is a controlled chemical as per Division II of Schedule (v) of The Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemical, Equipment and Materials) Rules 2001. Rule 2 (v) of the said rules defines the "Controlled Chemicals " means a substance listed in Schedule V and includes a controlled chemical preparation". The Rules referred above were promulgated by the Federal Government in terms of Section 77 of The Narcotic Substances Act 1997 in order to regulate the activity of Drugs of Abuse, Controlled Chemicals, Equipment and Materials in order to ensure that there is no significant risk that controlled chemicals, equipment and materials may be diverted from lawful use to the unlawful.
5. By virtue of Rule 4 of the said rules in order to help and ensure that there is no significant risk that controlled chemicals, equipment and materials may be diverted from lawful use to the unlawful manufacture of ally drug of abuse in Pakistan or elsewhere, the Competent Authority, by notice published in the Official Gazette, may determine in relation to any operator or class of operators which control measures or combination of measures specified in Sub-rule (2), shall apply for the purpose of this Chapter. Sub Rule 2 provides the control measures, or combination of control measures, which the Competent Authority may determine. Competent Authority is defined in R.2(iv) of the said rules. For this purpose the mechanism is provided in Chapter 3, whereby such activity is to be regulated and controlled through registration, licensing and permit system and no person other than the licensee or permit holder can deal with controlled chemicals, equipment and materials. Section 2 K of The Control of Narcotic Substances Act 1997, defines the Controlled Substances which read as under:- Section.2-K "controlled substance" means any substance which may be used for the production or manufacture of narcotic drugs or psychotropic substance; Whereas Section 7 of the said Act place a prohibition on import or export of narcotic drugs, psychotropic substance or controlled substance, save in accordance with rules made under sub- section (2) and in accordance with the conditions of any licence, permit or authorization for that purpose. Section 7 reads as under:- Section.7 "Prohibition of import or export of narcotic drugs, etc.
(1) No one shall
(a) import into Pakistan;
(b) Export from Pakistan; a. Transport within Pakistan; or
(c) transship; any narcotic drug, psychotropic substance or controlled substance, save in accordance with rules made under subsection (2) and in accordance with the conditions of any licence, permit or authorization for that purpose which may be required to be obtained under those rules.
(2) The Federal Government may make rules permitting and regulating the import into and export from Pakistan, transport within Pakistan and transshipment of narcotic drugs, psychotropic substances or controlled substances, and such rules may prescribe the ports or places at which any kind of narcotic drug, psychotropic substance or controlled substance may be imported, exported, transported within Pakistan or transshipped, the form and conditions of licence, permit or authorities by which such licences, permits or authorization may be granted, the fees that may be charged, therefore, any other matter required to have effective control of the Federal Government over such import, export, transportation and transshipment."
6. So for as role attributed to Syed Nazir Hussain Shah, petitioner is concerned, he has also led to the recovery of 12 kilograms heroin from upper portion of his house, which clearly falls under Section 9( c ) of The Control of Narcotic Substances Act 1997. The petitioner Syed Nazir Hussain Shah is charged alongwith his co-accused Mst. Naseem Akhtar, petitioner on the allegation of recovery of 12000 kilograms of Hydrochloric Acid and 12 kilograms heroin. Though initially he was arrayed as an accused on the statement of female co-accused but later on he led to the recovery of 12 kilograms heroin from his house. Thus involvement is not only on the basis of statement of co- accused. The statement of co-accused is even relevant under the circumstances, in terms of Article 40 of The Qanoon-e-Shahadat Order 1984 as in furtherance of the said statement the petitioner also led to the recovery of 12 kilograms heroin. Reliance in this respect can be placed on the case of "ZAKIR KHAN and others versus THE STATE" (1995 SCM R 1793).
7. The petitioners without obtaining any permit, license or having authorization for that purpose were dealing with the transportation of Hydrochloric Acid which is a controlled chemical. Section 9 of The Control of Narcotic Substances Act 1997 provides the punishments for contravention of sections 6, 7 and 8 of the Act. The act of the petitioners is clearly in violation of Section 7 of the Act and attracts the penal consequences provided under Section 9 of The Control of Narcotic Substances Act, 1997.
8. In the light of above discussion, we have no doubt in our mind to observe that there is sufficient material available on the record to believe that the petitioners are involved in the alleged offence, attracting the mischief contained in Section 9(c) & 15 of The Control of Narcotic Substances Act, 1997. Thus bar contained in Section 51 of the Act ibid is clearly attracted to the present case, consequently, we are not inclined to allow these both petitions, therefore, the same are dismissed.