' QAZI MUHAMMAD FAROOQ, J.--- On a prior tip-off with regard to smuggling of a huge quantity of heroin through Motor Car No,PRB-5500 a contingent of the Anti-Narcotics Force headed by Ehsanul Haq, F.I.O. Had laid a picket near Hayat Abad. In the meantime the said car appeared on the scene but the driver accelerated the speed when signaled to stop. The force chased the vehicle in the official pick-up but in vain as it disappeared in the streets of Hayat Abad. However, the search continued and in due course the suspect car was found parked at the Taxi Stand in front of Kirkham Market. The driver, an Afghan Refugee, was interrogated and during the ensuing search a huge quantity of heroin wrapped in cloth bags was found lying in the car. Keeping in view the gravity of the situation the raiding party took the car to the A.N.F. Police Station where heroin weighing 43 kilograms was recovered therefrom and made into sealed parcels after obtaining the requisite samples. The driver of the car was booked for offences under sections 6, 7, 8 and 9 of the Control of Narcotic Substances Act, 1997 vide F.I.R. No-.9, dated 28-4-1998. He moved a bail application at the lower Forum but without success and hence the bail application in hand.
2. It was contended by the learned counsel for the petitioner with vehemence that involvement of the petitioner in the crime required further enquiry as the recovery was made in a clandestine manner at the police station and not at the spot and it had also not been witnessed by any independent person.
3. The learned counsel appearing for the State, on the other hand, argued that there was no need to associate independent witnesses with the search and recovery in view of section 2,5 of the Control of Narcotic Substances Act, 1997 which had specifically excluded application of the provisions of section 103, Cr.P.C. To the searches made under the said Act. He further argued that the offence committed by the petitioner was punishable with death, therefore, the bail application was not maintainable in view of the bar on grant of bail contained in section 51(1) of the Control of Narcotic Substances Act, 1997.
4. After giving the contentions raised at the Bar our anxious consideration we have come to the irresistible conclusion that bail plea of the petitioner cannot prevail as he is prima facie connected with the crime for which he has been charged in view of the evidence on record which includes the statements of the recovery witnesses and the positive report of the Chemical Examiner. No doubt the recovery was effected at the police station but the deviation cannot be blown out of proportion in view of the explanation contained in the F.I.R. That the car was driven to the police station owing to the gravity of the situation and exigency of circumstances. The explanation seems plausible in view of the prevailing law and order situation and the hot pursuit and hide and seek after which the petitioner was nabbed. The contention with regard to non-association of independent witnesses with the search and recovery cannot be raised in the face of section 25 of the Control of Narcotic Substances Act, 1997 which has categorically excluded application of section 103, Cr.P.C. To the searches made under the Act. It reads as under:-- "The provisions of the Code of Criminal Procedure, 1898, except those of section 103, shall, mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all. Warrants issued and arrests and searches made under these sections."
It is a settled principle of the construction of statutes that when in an enactment a special procedure has been laid down and a special provision has been made on a particular subject then a general provision does not apply to that subject.
5. This brings us to the embargo-related contention based on subsection (1) of section 51 of the Controls of Narcotic Substances Act, 1997 which is worded thus:-- "(1) Notwithstanding anything 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 relating to narcotics where the offence is punishable with death."
6. The embargo is fully attracted in this case and the bail application is not maintainable at all as in view of the material on record there exist reasonable grounds for believing that the petitioner has been guilty of an offence punishable with death under section 9(c) of the Control of Narcotic Substances Act, 1997. It is scarcely necessary 'to mention that the embargo being extremely stringent can be pressed into service only when the person charged with an offence punishable with death under the Control of Narcotic Substances Act, 1997 is prima facie and reasonably connected with the crime.
7. In the result the bail application is dismissed.
Bail declined.