Arbab Muhammad Tahir, J.- The petitioners (Syed Baqir Raza Naqvi, Syed Jaun Elia Mehdi and Syed Talmeez Ul Hassan), through the instant petition have sought post arrest bail in F.I.R. No. 40/2024, dated 14.02.2024, under Sections 6, 9(1)4(d), 14, 15 of the Control of Narcotic Substances Act, 1997 ("Act of 1997"), registered at Police Station ANF RD North, Rawalpindi.
2. The facts as narrated in the FIR are that on 13.02.2024, Afzal Nazir Inspector received spy information that the petitioners are engaged in online sale of CBD/Hemp Oil/THC in House No.65, Street No.1, Sector C, Media Town, Islamabad. When raid was conducted on the said house, the three petitioners were found present, upon cursory interrogation Jaun Elia revealed that he is engaged in online marketing of the THC-Hemp Oil prepared by Baqir Mehdi Raza, whereas, Talmiz ul Hassan disclosed that he is engaged in packing and dispatch of the parcels. Upon pointation of Baqir Raza Mehdi, CBD/Hemp oil of the following discretion was recovered.- 1 carton containing four blue coloured shopping bags. Shopping bag # 1: 54 bottles 30 ml each, 15 bottles 10 ml each, 6 bottles 11 ml each, total 7.056 Kgs. Shopping bag # 2: 34 bottles 7 grams each, total weighing 238 grams Shopping bag # 3 : 11 bottles 30 ml each, 5 bottles 130 grams each - total weighing 2.090 Kgs 03 large plastic bottles each weighing 830 grams, total weighing 2.490 Kgs As per contents of the FIR, the recovered material was weighed alongwith plastic bottles.
Representative samples were prepared for chemical examination. The Investigating Officer also recovered tools / machinery used for packing purposes from the spot, hence this FIR.
3. Learned counsel contends that the petitioners are innocent and have falsely been involved in the instant case; that the story narrated in the FIR is concocted; that case of the petitioners calls for further inquiry; that investigation has since been completed and the petitioners are no more required for further probe; that petitioners do not retain any criminal record; the report of chemical examiner is vague; the Act of 1997 does not criminalize preparation/possession of hemp oil; hemp oil is extracted from cannabis seed; seed has been excluded from the definition of cannabis; even if for the sake of argument it is admitted that hemp oil is produce of cannabis, then in absence of any express penalty under section 9, the offence will be punishable under section 16 of the Act of 1997; the maximum punishment provided for section 16 of the Act of 1997 is three years, which does not fall within the prohibitory clause of section 497 Cr.P.C.; in the absence of any express provision in the Act of 1997, the offence shall be dealt with under Cannabis Control and Regulatory Authority Ordinance, 2024 which only prescribes imposition of fine and does not provided for punishment of imprisonment under section 26 thereof.
4. Conversely, learned Special Prosecutor, ANF has vehemently opposed the bail application of the petitioners and argued that huge quantity of narcotic substance was recovered from the possession of the petitioners; the petitioners are connected with the commission of offence; the petitioners were arrested at the spot and there is no confusion as to their identification; sufficient incriminating material is available on record; that the offence alleged in the FIR is not bailable; THC is included in Schedule-I of the Act of 1997 as psychoactive substance; the offence entail capital punishment; the Cannabis Control and Regulatory Authority Ordinance, 2024 is not applicable in the case in hand.
5. Heard. Record perused.
6. The petitioners have been charged with the offence under section under Sections 9(1)4(d) (i.e. possessing Hashish Oil and liquid hashish) of the Act of 1997. As per the Certificate of Analysis, the recovered substance is "CBD Oil" (Canabidoil).
7. In order to determine the proper classification of the recovered substance and its criminal effect under the Act of 1997, this Court appointed Dr Tanvir Ahmed Khan, Incharge Federal narcotics Testing Laboratory and Mr Tahir Kazim, Director (Law), Central Police Office, Islamabad, as amici curiae. Both the learned amici curiae submitted their respective briefs.
8. The question for determination is whether Cannabidoil is a substance, prohibited by the provisions of the Act of 1997? Section 2 (d) of the Act of 1997 defines the expression "cannabis (hemp)" as follows.- "(d) "cannabis (hemp)" means,- (i). cannabis resin (charas) that is, the separated resin, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (ii). the flowering or fruiting tops of the cannabis plant (excluding the seed and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated or known and include all forms known as bhang, siddhi or ganja; and (iii). any mixture with or without neutral materials of any of the above forms of cannabis or any drink prepared therefrom."
A plain reading of the above definition clause reveals that "seed and leaves" are excluded from the above definition if they are not accompanied by the fruiting tops from which resin has not been collected. This definition clause is in line with Article 1 of the Single Convention on Narcotic Drugs, 1961. The expression "psychotropic substance" has been defined in section 2(za) of the Act of 1997 as meaning "the substances, specified in the Schedule-I to the Act of 1997 and such substances as the Federal Government may, by notification in the official Gazette, declare to be psychotropic substance". "Tetrahydrocannabinol" has been mentioned in clause 83 of Schedule-I to the Act of 1997 as psychotropic substance, which is usually referred to as "THC". Section 9 of the Act of 1997 provides multiples penalties for breach of sections 6, 7 and 8 of the Act of 1997. Sub-section (1) provides punishments for possessing (1) Bhang, (2) Post or poppy straw, (3) charas, (4) Hashish oil and liquid hashish, (5) opium, (6) heroin and morphine and (7) cocaine. Sub section (2) deals with punishment for possessing psychotropic substances as per column (3) of the Table given thereunder, whereas, sub section (3) of section 9 deals with punishment for possessing controlled substances in violation of the Act of 1997. Section 16 of the Act of 1997 provides that whoever contravenes any provision of this Act or any rule or order made, or any licence, permit or authorization issued hereunder, for which no punishment is separately provided in this Chapter, shall be punishable with imprisonment for a term which may extend to three years and fine.
9. The prosecution has dealt with the recovered material as "hashish oil or liquid hashish". Dr Ikram ul Haq, Chief Drug Control & Traditional Medicine Division/Incharge Federal Narcotics Testing Lab has submitted his amicus brief, wherein "hash oil" has been distinguished from "hemp oil - canabidoil (CBD)" as follow.- Hash Oil Hash oil, also known as honey oil or cannabis oil, is an olcoresin obtained by extraction of cannabis or hashish. It is a cannabis concentrate containing many of its resins and terpenes in particular, tetrahydrocannabinol (THC), cannabidoil (CBD), and other cannabinoids. There are various extraction methods, most involving a solvent, such as butane or ethanol. Hash oil is usually consumed by smoking, vaporizing or eating. Hash oil may be sold in cartridges used with pen vaporizers. Preparations of hash oil may be solid or colloidal depending on both production method and temperature and are usually identified by their appearance or characteristics. Color most commonly ranges from transparent golden or light brown, to tan or black. Cannabis retailers in California have reported about 40% of their sales are from cannabis oils. Hash oil is an extracted cannabis product that may use any part of the plant, with minimal or no residual solvent. It is generally thought to be indistinct from traditional hashish, according to the 1961 UN Single Convention on Narcotic Drugs (Schedule I and IV), as it is "the separated resin, whether crude or purified, obtained from cannabis plant."
Hemp Oil/Cannabidoil (CBD).
Hemp oil (hemp seed oil) is oil obtained by pressing hemp seeds, cold pressed, unrefined hemp oil is dark to clear light green in color, with a nutty flavor. The darker the color, the grassier the flavour.
It should not be confused with hash oil, a tetrahydrocannabinol containing oil made from cannabis flower.
Description: Refined hemp seed oil is clear and colorless, with little flavor. It is primarily used in body care products.
Industrial hemp seed oil is used in lubricants, paints, inks, fuel and plastic. Hemp seed oil is used in production of soaps, shampoos and detergents. The oil has a 3:1 ratio of omega-6 to omega-3 essential fatty acids. It may also be used as feedstock for the large-scale production of biodiesel.
Manufacture: Hemp seed oil is manufactured from varieties of Cannabis sativa and that do not contain significant amount of tetrahydrocannabinol (THC), the principal psychoactive element present in the cannabis plant. This manufacturing process typically includes cleaning the seeds to 99.99% before pressing the oil. There is no THC within the hemp seed, although trace amounts of THC may be found in hemp seed oil when plant matter adheres to the seed surface during manufacturing. The modern production of hemp seed oil, particularly in Canada, has successfully lowered THC values since 1998. Regular accredited sampling of THC in Canadian hemp seed oil shows THC levels usually below detection limit of 4 ppm (parts per million, or 4 mg/kg). Legal limit for THC content in foodstuffs in Canada is 10 ppm. Some European countries have limits of 5 ppm or non-detected, some EU countries do not have such limits at all.
It is obvious from the above, that Hemp Oil/CBD is extracted from cannabis seeds, expressly excluded from the definition "cannabis" in section 2(d)(ii) of the Act of 1997. A nominal value of THC derived out of cannabis, a prohibited substance under the Act of 1997, may be present due to adhesion of plant matter to the surface of seed.
10. In line with its obligation under Article 23 of the Single Convention on Narcotic Drugs, 1961, being signatory to the said Convention, the Cannabis Control and Regulatory Authority Ordinance, 2024 (hereinafter the "Ordinance") has been promulgated by the President on the advice of the Prime Minister in terms of Article 48(1) read with Article 89 of the Constitution of the Islamic Republic of Pakistan, 1973, duly notified in the official gazette on 16.02.2024. Section 3 of the Ordinance provides for establishment of the Cannabis Control and Regulatory Authority, to be controlled and administered through the Board of Governors under section 4 thereof. Section 13 of the Ordinance empowers the Federal Government to formulate policies for grant of license for cultivation of cannabis. Clauses (d) and (e) of sub section (2) of section 13 of the Ordinance deals with two different situations, i.e. (i) formulation of policies for cultivation of cannabis with THC content of 0.3 percent and (ii) formulation of policies for cultivation of cannabis with THC content of 0.3 percent and with THC content of more than 0.3 percent. This law has, therefore, distinguished cannabis with THC level of less than 0.3 percent. Different countries like United State, Canada, China and the European Union, hemp is legally defined as having THC level below 0.3 percent. Section 20 of the Ordinance prohibits cultivation, production, manufacture, product development and sale of and from cannabis plant derivatives or any other related activity as may be prescribed, except under a licence issued by the Cannabis Control and Regulatory Authority. Section 26 of the Ordinance penalizes the contravention of the provisions of the Ordinance by imposition of fine, variable in cases of an individual and a company. The order/decision of the Cannabis Control and Regulatory Authority imposing fine is appealable under section 27 of the Ordinance before the High Court.
11. The Ordinance is a special law, promulgated later in time. The legislature is presumed to be cognizant of the existing laws i.e. the Act of 1997. Cannabidoil has been expressly included in the definition of cannabis plant in section 2(d) of the Ordinance and its production/sale has been made subject to a licence issued under section 20 read with section 21 of the Ordinance. The development of canabidoil and its sale in contravention of the provisions of the Ordinance is a penal offence under section 26 thereof. Such penalty is in the shape of imposition of fine by the Authority, appealable before the High Court.
12. In the case in hand, the Laboratory report confirms the oil to be CBD, however, quantitative assessm ent of the substance has not been conducted by the Lab, to confirm the percentage of "tetrahydrocannabinol (THC)" present in the said oil. Cannabidoil (CBD) has neither been defined in section 2 of the Act of 1997 nor included in the Schedule or Tables provided thereunder. Whether the whole liquid recovered from the petitioners is TCH, included in clause 83 of Schedule-I as psychoactive substance or TCH exists in nominal range, has not been explained in the report of Laboratory. The fresh analysis of representative samples to be conducted by the Laboratory regarding the existence of percentage of THC in the liquid would explain the applicability of provisions of the Act of 1997 i.e. section 9 or section 16 thereof.
13. At present two laws govern the subject. Section 9(1) of the Act of 1997, prima facie, does not provide punishment for possessing "cannabidoil (CBD)". CBD is extracted from cannabis seed, which is excluded from the definition of cannabis under section 2(d)(ii) of the Act of 1997. On the other hand, under section 2(d) of the Ordinance, cannabinoids has been defined to include canabidoil, development/sale whereof has been made subject to a licence, default or breach whereof is an offence under section 26 thereof. Furthermore, there is no determination on record regarding the percentage/value of THC present in the CBD. The Laboratory in its report has merely suggested that CBD is a Narcotic Drug defined in section 2 of the Act of 1997, but the law speaks otherwise. The question whether express punishment has been provided under section 9 of the Act of 1997 for possessing CBD, or it shall be dealt with under section 16 thereof is also yet to be decided by the trial court after considering report of the Laboratory. Furthermore, the question, whether the matter falls within the ambit of the Ordinance and punishable under section 26 thereof has also yet to be considered while framing charge by the trial court.
14. The incomplete laboratory report; the question that in presence of two laws i.e. Act of 1997 and the Ordinance on the subject, which one would be applicable in the case in hand; whether the petitioners are liable to imposition of fine under the Ordinance or punishment of imprisonment under the Act of 1997; and, the question that if it is concluded that provisions of the Ordinance are applicable in the case in hand, then what would be the fate of instant criminal case registered and investigated by the Anti-Narcotic Force; are questions which renders the case of the petitioners as that of further inquiry. The Supreme Court in the case titled "Muhammad Nadeem v. The State and another" [2023 SCMR 184] has held as follows.- "The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime. It is well settled that the object of a trial is to make an accused face the trial, and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than let him rot behind bars. The accused is entitled to expeditious access to justice, which includes a right to a fair and expeditious trial without any unreasonable and inordinate delay. In the case of Zaigham Ashraf v.
State and others (2016 SCMR 18), this Court held that the words "reasonable grounds" as contained in Section 497, Cr.P.C., required the prosecution to show to the court that it was in possession of sufficient material/ evidence, constituting 'reasonable grounds' that accused had committed an offence falling within the prohibitory limb of Section 497, Cr.P.C. For getting the relief of bail accused only had to show that the evidence/material collected by the prosecution and/or the defence plea taken by him created reasonable doubt/suspicion in the prosecution case and he was entitled to avail the benefit of it.
15. For what has been discussed above, it is hereby directed as follows.- (i). The instant petition is allowed. The petitioners are admitted to post-arrest bail subject to their furnishing bail bonds to the tune of Rs.200,000/- (Rupees two hundred thousand only) each with one surety each in the like amount to the satisfaction of the learned Trial Court.
(ii) The Investigating Officer is directed to collect representative samples from the liquid recovered from possession of the petitioners and send it again to the Laboratory.
(iii). The Laboratory shall conduct quantitative assessment and give findings, inter alia, on the following aspects.-
(a) The value/percentage of TCH present in the liquid.
(b) Whether the TCH level in the recovered oil is of such a level, that it can be misused as psychoactive substance.
(c) To identify the exact clause of section 2 of the Act of 1997, which is attracted in the case in hand.
(d) Whether CBD is Hashish oil or liquid hashish?
(iv). After receiving the report of Laboratory, the Investigating Officer shall exactly classify the offence mentioned in section 9 of the Act of 1997, its Schedule or Tables attracted for possessing/production of "canabidoil". Such classification shall be duly approved by the Director General, Anti Narcotics Force. However, if the Director General, ANF is of the opinion that "canabidoil" does not breach the provisions of the Act of 1997, then the matter shall be referred to the Cannabis Control and Regulatory Authority for further proceedings under the Ordinance.
(v). The report of Laboratory shall be placed before the trial court. The learned trial court shall be at liberty to form any opinion in accordance with law.
Needless to mention that the above observations, in so far as, they are relevant to the merits of the instant case, are tentative which shall not affect rights of the parties during trial.