AHMAD ALI, J.---Through this petition, petitioner (Farhan Shah) seeks his post arrest bail in case FIR No.848 dated 23.10.2019 under secton 9-D, KP CNSA, 2019, registered at Police Station, Charsadda.
2. In view of the Judgment in case titled "Muhammad Shakeel v. The State" reported in PLD 2014 SC 458, facts of the case need not be mentioned at bail stage. However , allegations against the petitioner are that 4017 grams charas were recovered from the house of petitioner . Hence, the present FIR was registered.
3. Arguments heard and record gone through.
4. Instant case was registered under section 9-D of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 (hereinafter referred as the Act, passed by the Provincial Assembly of Khyber Pakhtunkhwa on 27.08.2019 and published in the official gazette on 24.09.2019. Being a special law, the provisions of the Act are to be complied with and followed in letter and spirit. According to the section 28 of the Act, all the powers of entry , search, seizure and arrest C without warrant have been vested in the authorised officer. The section 28 of the Act, reads as under:
28. Power of entry , search, seizure and arrest without warrant .--(1) Where an authorized officer, who from' his personal knowledge or from information given to him by any person, is of the opinio n that any narcotic substance is kept or concealed in any building, place, premises, dwelling house or conveyance and warrant for the search or arrest cannot be obtained from the Special Court against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such of ficer may-
(a) enter into any such building, place, premises, dwelling house subject to the proviso of subsection (1) of section 27 of this Act;
(b) break open any door and remove any other obstacle to such entry in case of resistance;
(c) seize such narcotic substances, meth amphetamine and other materials used in the manufacturing thereof and any other article or documents which he has reason to believe to be liable for confiscation or may furnish evidence of the commission of an of fence punishable under this Act; and
(d) search and, if he thinks proper , arrest any person whom he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under subsection (1), the authorized officer, mentioned in subsection (1), shall record the grounds and basis of his information and take immediate necessary action and forthwith send a copy of the same to the Director or as the case may be to the Regional Police Of ficer.
5. Whereas, section 30 of the Act confers powers to the "authorised officer " to stop and search any conveyance.
The authorised officer, as defined in section 2(c) of the Act is either the officer of the D Directorate General not below the rank of sub-Inspector , authorized by the Director or a Police Officer not below the rank of sub-Inspector authorized by the Regional Police Officer. Whereas, 'Directorate General' refers to the Director General of the Excise, Taxation and Narcotics Control Department. A bare reading of the section 2(c) of the Act makes is clear that not every sub-Inspector or higher , ranked officer of the police department can act as an 'authorised officer' but only the officer authorised by the Regional Police Officer can stop and search any conveyance or person and make seizure there from. However , the entire F record is silent with regard to any authorization by the Regional Police Officer to the complainant to perform duties as an authorised officer under the Act of 2019. Therefore, it would be determined at trial stage as to whether seizure and arrest etc. by the complainant are legally warranted or not? and till then the accused/petitioner cannot be detained behind the bars where the status of Complainant himself is dubious.
6. Yet there is another noticeable legal aspect of the case i.e. according to section 33 of the Act of 2019, any person arrested and articles seized unde r the Act shall be produced within twenty-four hours H of the arrest or seizure before the Special Court and only a special Court has been conferred with the jurisdiction to take any measures for the disposal of seized articles and person arrested. Section 33 of the K.P. CNSA, 2019 is reproduced below for ready reference:
33. Disposal of articles seized and person arrested .---(1) Any person arrested and articles seized under this Act, shall be produced, within twenty-four (24) hours of the arrest or seized, before the Special Court by whom the warrant was issued.
(2) The special Court to whom the accused and articles etc. are produced under subsection (1) shall, with all convenient dispatch, take such measures as may be necessary for the disposal of the articles so seized and person arrested.
7. The Special Court within the purview of section 22 of the Act is a Court established by the provincial government and notified in the official Gazette for which Judges have to be appointed after the consultation with the Chief Justice of Peshawar High Court. There is no cavil with the proposition that till date no notification as to the establishment of the Special Court has been issued by the Provincial Government of Khyber Pakhtunkhwa nor judges have been appointed there-for . Now a legal question arises that whether in the absence of Special Courts, the production of narcotic substances and accused before an ordinary Court of Sessions can fulfil the mandate of section 33 of the Act and whether the Court of Sessions Judge has the jurisdiction to deal with the articles seized by the complainant and person arrested; and to pass any order regarding the fate of same. Besides, record of the case is totally silent that whether the complainant was authorized officer or not, as per section 2(c) of the Act ibid. When law provides an act to be done in a specific manner , then it should be done accordingly . This legal infirmity makes the accused/petitioner entitled for the concession of bail.
8. As none of the above mentioned mandatory provisions were complied with, so case of accused is fit for bail.
9. Before parting with this order , this court finds it necessary to mention that all the observations recorded above are tentative assessment just for the disposal of bail petition and not intended to influence the mind of trial Court, which- is free to appraise the evidence strictly in accordance with law and merits of the case and; as per law laid down in (1996 SCMR 1845 ).
10. For the reasons mentioned above, this petition is allowed and the accused/petitioner is admitted to bail provided he furnishes bail bonds in M the sum of Rs.300,000/-, with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate, concerned, who shall ensure that the sureties are local, reliable and men of means.
11. Above are the detailed reasons of short order of even date.