MUHAMMAD IQBAL KALHORO, J. Petitioner arrested on 18.07.2020 in Crime No.18/2020 under section 156(8)(89) of the Customs Act, 1969 read with sections 34/109, P.P.C. and 3/4, Anti-Money Laundering Act, 2010 registered at Police Station FIA, Corporate Crime Circle (CCC), Karachi is seeking bail by means of this petition. The reason why he has invoked constitutional jurisdiction of this court for this purpose is because despite lapse of statutory period, the Challan of the case has not been filed in any court and he has been rendered remediless to seek such a relief in accordance with law.
2. The back ground leading to this petition manifests that on a source report, FIA conducted a raid on a premises 1315/3, Hussainabad, FB Area, Karachi and recovered from a container available there 170 bags, of Ketamine (each bag of 1 kg), psychotropic substance tactfully concealed in bags of rice meant for export to Belgium/Europe through a clearing agent Al-Noor Muhammad Hussain, who disclosed, among other things, applicant and his brothers as owners of the consignment, which fact was verified later on in a subsequent enquiry. The applicant present at the spot was accordingly arrested.
3. After usual investigation when interim charge sheet was submitted in the court of learned Special Judge (Customs, Taxation and Anti-Smuggling), Karachi, the presiding officer did not entertain the same and returned it to I.O. for submitting before the relevant court by means of impugned order. She has made this decision considering an amendment vide S.R.O. 446(I)/2020 dated 6.4.2020 whereby the recovered substance Ketamine and Ketamine Hydrochloride Salt have been included in the list of psychotropic substances in Schedule-III of CNS Act, 1997 (Schedule-III is provided under CNS, Rules, 2001), and thus an offence respecting thereof exclusively triable under CNS Act. 1997. In order to bring home her point, she has cited section 185-B (a) of the Customs Act, 1969, which stipulates a bar to jurisdiction of the Special Court to try an offence relating to narcotics and narcotic substances. Thereafter, reportedly, the I.O. attempted to submit the challan in the relevant Special Court established under CNS Act, 1997 but learned presiding officer did not accept the same for want of jurisdiction.
4. We have heard the parties and perused the record. It is apparent that by virtue of an amendment vide SRO dated 6.4.2020, Ketamine and Ketamine Hydrochloride Salt along with its chemical formula have been included in the list of psyehotropic substances given in Schedule-III of CNS Act, 1997 (CNS, Rules, 2001). Per sections 6 and 7 of CNS, Act 1997 production, manufacture, possession, transport, import and export into Pakistan, transship etc. of any psychotropic drug, save in accordance with law, is an offence tariable exclusively under the said Act. Further, section 72 of CNS Act, 1997 envisages that prohibition and restriction imposed under this Act on import, export etc. of narcotic drug, psychotropic substance, etc. shall be deemed to be prohibitions and restrictions imposed under the Customs Act, 1969, and the provisions of this Act shall apply. In the first proviso thereto, it is stipulated that notwithstanding anything contained in any law including the Customs Act, 1969, all the offences relating to narcotic drug, etc. shall be tried under the provision of this Act. The second proviso, which appears to be aimed at meeting any investigation related exigency in this regard, elucidates that where an Officer of Customs apprehends a person involved in any such offence, he shall be empowered to carry out inquiry or investigation in the manner as an officer authorized under this Act. That means that if an offense of smuggling in terms of Customs Act, 1969 has been committed in respect of any narcotic drug, etc. the scheme under CNS Act, 1997 would come into play and the accused would be dealt with under the provisions of this Act. The arrest and investigation by an officer not strictly authorized by this Act would stand legitimized as have been done by an officer under this Act. And likewise the outcome of such investigation for conducting a trial would be the subject matter of this Act and would be looked into by a Court established under this Act. This view is further accentuated from a combined reading of sections 74 and 76 of CNS Act, 1997 which jointly provide an overriding character of CNS Act, 1997 in the matters of punishment to an accused involved in narcotics cases and applicability of its provisions notwithstanding anything contained in any other law. It shall therefore definitively follow that even in the face of any conflict between provisions of this Act and other laws criminalizing an action, its consequence, and the medium to deliver or enforce it, provisions of this Act shall prevail over the other law.
5. The question of trial of accused person(s) under two different laws has often been the subject matter of different decisions of Honourable Supreme Court and of the High Courts of this country. In exactly same context, the Honourable Supreme Court in the case of The State through Collector of Customs v. Nasim Amin Butt and others (2001 SCMR 1083) has held that the combined effect of reading of the provisions of sections 6, 7, 8, 72, 73 and 74 of CNS Act, 1997 and the Customs Act, 1969 is that an offence connected with narcotics could be tried only under the provisions of CNS, Act in a court established thereunder to the exclusion of the court established under any other law. A full bench of this court has expressed identical view in the case of Hussain Abdullah Salum v. The State (PLD 2001 Karachi 283) and has held in para No.16 that from a reading of sections 72 and 74 of CNS, Act, 1997 it is quite clear that when a person is involved in smuggling of narcotic he can only be tried and punished under the said Act, and that it is intended to remove possibility of double jeopardy in cases where prosecution under the Custom Act could take place. This view was again followed by this court in the case of John Bernard Sender v. The State (PLD 2004 Karachi 136) where it has been conclusively laid down that all the offences punishable under CNS Act, 1997 are exclusively triable under the said Act and by the court established thereunder.
6. In the light of above discussion, we concur with the decision of learned Special Judge (Customs, Taxation and Anti-Smuggling), Karachi returning the challan to the I.O. for submission in the court having jurisdiction which in this case would be the special court established under CNS, Act, 1997.
Accordingly the I.O. is directed to submit the challan of this case before such court within 3 days of this order which shall proceed with the matter, entertain the bail application of the petitioner, and shall decide the case expeditiously in accordance with law.
The petition is disposed of in above terms. Let a copy of this order be conveyed to office of learned Additional Attorney General for compliance.