' After having failed to secure bail from the learned lower Courts, Bahar Gul petitioner, who is charged in a case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 read with sections 8/14 of Dangerous Drugs Act, 1930 vide F.I.R. No, 6 dated 8-12-1992 registered at Police Station, C.I.D. Peshawar, has approached this Court for the same purpose.
2. The prosecution case, in brief, is that on prior tip of Pir Iqbaluddin Inspector C.I.D. Along with Police posse on 8-12-1992 at 0630 hours near Alnoor Plaza, University Road stopped an Oil Tanker, No, PRO-6037 which was coming from Jamrud side. The Oil Tanker was taken to C.I.D. Headquarters where on thorough checking by a Mechanic 720 kilograms of charas which was wrapped in manure bags and plastic envelopes, was recovered from the secret cavities of the said Tanker. The petitioner/driver of the vehicle disclosed the names of the owners of the contraband charas and stated that he was taking the contraband from Shah-Kas to Karachi on payment. 10 grams of charas was scaled in a separate parcel and sent to Chemical Analyst for opinion whereas the remaining packets of the charas were kept in ten bags duly sealed. The report of the Chemical Analyst is in positive.
3. The learned counsel for the petitioners contended that there is no evidence whatsoever or record to show that the petitioner had the conscious knowledge about the concealment of the contraband charas in the secret cavities of the Oil Tanker. The learned counsel submitted that the accused-petitioner is a driver by profession and at the most can be held to be a carrier. He submitted that the offence falls under Article 3(1) of the Prohibition Order which entails maximum punishment of 5 years, as such the offence does not fall within the prohibitory clause of section 497, Cr.P.C. He argued that sections 8/14 of the Dangerous Drugs Act, 1930 are not applicable to the present case as the definition of charas given in clause (ii)(c) of sect ion 2 of the Act provides that charas is a resin obtained from the Indian hemp plant, which has not been submitted to any manipulations other than those necessary for packing and transportation. He contended that as per F.I.R. `Pukhta charas' was recovered which does not fall within the definition of charas as given aboVe because resin is always in a liquid form. He submitted that the petitioner is no more required by the investigating agency, therefore, in view of his submissions, the petitioner be released on bail
5. Opposing the aforesaid contentions, the learned Additional Advocate-General submitted that huge quantity of charas has been recovered from the secret cavities of the Tanker. He contended that drivers are being used as carriers in smuggling business for which they are heavily paid and it needs serious operation clean-up. He argued that sections 8/14 of the Dangerous Drugs Act is applicable which provides life imprisonment, therefore, the petitioner is not entitled to the concession of bail.
6. After hearing the learned counsel for the petitioner and the State, and going through the material available on the record, it is manifest that the accused-petitioner was in conscious possession of the contraband as he himself in his statement recorded under section 161, Cr.P.C. Has admitted that he brought the Oil Tanker No, PRO-6037 from the Hujra of Ikhtiar Gul wherein charas in the secret cavities had been concealed, and he was sure that the police would not be able to locate the concealed contraband. He also stated that Rs,1,500 were paid for carrying the contraband from Shah-Kas to Peshawar. Carriers are actively contributing in the promotion of evil business of smuggling and it has become an attractive profession with handsome return. The `big- fish' by keeping itself off the scene is extensively using them for their ugly purposes and achieving its objectives, therefore, this tendency needs to be strenuously curbed. In such circumstances, a general licence cannot be given to the carriers to carry on their nefarious business.
7. The contention regarding applicability of the Dangerous Drugs Act, it may be observed that the definition of charas as given in clause (ii) (c) of section 2 of the Dangerous Drugs Act and that of the definition of intoxicant given in the schedule relating to clause (g) of section 2 of the Prohibition (Enforcement of Hadd) Order, 1979, they are not only synonymous but word by word are alike, which are reproduced for comparison: ' Prohibition (Enforcement of Hadd) Order, 1979.
Section 2(g). "intoxicant' means an article specified in the Schedule and includes intoxicating liquor and other article... ... ... ...The Schedule.
2. Charas, that is the resin obtained from the Indian Hemp plant, which has not been submitted to any manipulations other than those necessary for packing or transport."
' Dangerous Drtigs Act. 1930 Section 2(c). "hemp" means... ... ...(ii) Charas, that is, the resin obtained from the Indian Hemp plant, which has not been submitted to any manipulations other than those necessary for packing and transport;"
Hemp includes charas which is evident from the definition given above and manufactured Drug/Dangerous Drug includes charas/hemp according to clause (g) (h) of section 2 of the Dangerous Drug Act. Under section 8 of the said Act, the Provincial Government controls the internal traffic of manufactured drugs and coca leaf and its contravention is punishable under section 14 of the Act which provides life imprisonment and fine, thus the 8 offence does fall under sections 8/14 of the Dangerous Drugs Act which is within the prohibitory clause of section 497, Cr.P.C.
8. In view of the above, this offence being against the humanity and public-at-large, no concession in such like cases is to be given. The bail application is, therefore, dismissed.