' This application for bail, moved by petitioner Khalilur Rehman, has arisen from a case F.I.R. No,62, dated 22-7-1997 under section 3/4, P.O., and 6, 7 and 9 of C.N.S.O., registered in Police Station Nizampur, District Nowshera for the possession of contraband Charas.
2. Petitioner Khalilur Rehman was arrested on 22-7-1997 at 19-00 hours when the local police of Police Station of Nizampur, after being tipped of, searched him near Datsun Stop and was found in possession of Charas weighing 1150 grams, concealed in a plastic bag, carried by him. He could not give justified reason for its possession, therefore, he was booked accordingly under the aforesaid provisions of law. His unsuccessful attempts before the lower forums obliged the petitioner to approach this Court with the present application.
3. Arguments of Mr. Zahid Jamal, Advocate for the petitioner and Mr. Munir Khan for the State heard and records of the case perused carefully.
4. The learned counsel for the petitioner, alive to the existence of severity of the provisions of C.N.S.O. Strenuously argued that where the accused is charged under two different statutes which provide different punishments then under normal circumstances, rule with the lesser punishment is to be considered for the purpose of the grant of bail. In this regard, reference is made to 1996 PCr.LJ
347. It is next argued that the recovery memo. Being prepared on the following day of the report i,e, 23-7-1997, rendered the case of the prosecution defective and hence a cae for the purposes of bail has been made out.
5. I have no intention to grudge the proposition that out of two statutes, the Court while considering bail application of an accused person generally take under consideration the one carrying lesser punishment, into account. But, I do not feel persuaded to succumb to the submission of the learned counsel for the petitioner qua reference to the judgment referred to by the learned counsel as it is a distinguishable in the sense that in the said case the petitioner was charged under 3/4, P.O. And section 8/14, Dangerous Drug Act, where neither of the statute contained negative language, whereas under C.N.S.A. a specific embargo is placed on the grant of bail under section 51 of the Act, which reads as under:-- "(1) Notwithstanding any thing contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relation to narcotics where the offence is punishable with death.
(2) In the case of offence punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount."
6. Furthermore, the provisions of this Act has overriding effect on any other law for the time being enforced. Section 76 of the Act is as follows:-- "Section 76. The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force."
7. Similarly, section 74 of the Act makes it all the more clear that the application of any other law will not prevent the offender from being punished under this Act. The relevant portion of section 74 goes as under:- "If an offence punishable under this Act, is also an offence in any other law for the time in force, nothing in that law shall prevent the offence from being punished under this Act. Provided...."
8. 1 also do not see weight in the contention of the learned counsel for the petitioner that the petitioner being charged under C.N.S.O. 1995, therefore,' C.N.S.A., 1997 is not applicable to the present case. It may be reminded that at the time of the commission of the offence the Ordinance already stood repealed by virtue of section 78 of the Act. C.N.S.A. Being implemented at the relevant time, the mere mentioning of C.N.S.O. In the F.I.R. By the police officials, who are unfortunately not well versed with the law, would not exclude the application of the Act, Be that as it may, the Ordinance also provides the similar provision of laws under sections 52, 81 and 79, respectively. As for second contention, I may repeat it date 23-7-1997 in the recovery memo. Is an unintentional mistake, which shows the carelessness of the police official, who has also shown the date of occurrence as 23-7-1997 in the recovery memo. The concerned police official who is so slack to bother to check the correct dates on such an important document of a criminal case shall be dealt with severely under efficiency and discipline rules by the concerned authorities. However, I am least inclined to give benefit of this irregularity to the petitioner from whom the seized Charas has been recovered, especially when it is from personal possession. Drug business under the hand of Drug Mafia has become source of menace to the society, which has not only ruined the lives of the youth of the c country, but also have brought disrespect to the country in the International community by smuggling it abroad. It was this ugly business of narcotics, penetrated by the Drug Mafia into the society, that the Legislature was forced to enact stricter law in the shape of this Act, putting complete embargo and restriction on the grant of bail, without excluding any class of people and also enhancing the punishment to death.
9. In view of the above discussion, I hereby dismiss the application.