' The local police on prior information conducted a search into the shop of accused Faqir Muhammad a Cobbler in Topi Bazaar on 23-3-1994 at 1 p.m. And allegedly recovered two K.Gs.
Charas and 300 grams opium. A case under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 was registered and the accused arrested.
2. Mr. Ashraf Khan Gadoon, Advocate states, that although the police has conducted search of the shop on prior information but they did not care to obtain a warrant as required under Article 22 of Prohibition Order No,4 of 1979 in absence whereof they had no authority to enter into the private premises. He also led me to the definition of "place" as made in clause (J) of Article 2 of the Order aforesaid which includes a "shop" by stating, that the shop being not a "public place" within the meaning of clause (L) of Article 2 of the Order ibid, it cannot be searched in the absence of a warrant from the competent, authority. He also argued that excepting two police officials none else has been shown to have witnessed the recovery. He lastly argued that the case is not covered by the prohibitory clause under section 497(1), Cr.P.C.
3. I see lot of substance in the arguments. The police did not obtain any warrant as required under Article 22 of the Order. The whole exercise of search and the consequent recovery of the contraband, if any, in the process shall, therefore, be illegal. I would accordingly admit the accused-petitioner to bail in the sum of Rs,50,000 with two sureties each in the like amount and to the satisfaction of the Illaqa Magistrate.