' The petitioner stand charged for having committed an offence punishable under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979 read with sections 6 to 9, Control of Narcotic Substance Act, 1997, Vide: F . I. R . , No,116. Dated 22-2-1999 lodged at Police Station, Akora, Tehsil and District, Nowshera, because 2500 grams (2-1/2 Kgs) charas was recovered from his possession.
2. After his arrest the petitioner went to the Court of Judge Special Court, Nowshera (Mr. Jehangir Khan) for bail who, by his order, dated 22-4-1999, refused to enlarge him on bail.
3. Hence this petition.
4. Mr. Fazal Elahi Khan, Advocate, learned counsel for the petitioner and Kh. Azhar RashRi, learned Assistant Advocate-General for respondent/state present and heard. Record of the case perused.
5. The learned counsel for the petitioner submits, in the main, that the A.S.I. Could only register a case against the petitioner under section 3/4 of the Prohibition - (Enforcement of Hadd) Order, 1979 and that he had no jurisdiction whatsoever to register a case under sections 6 to 9 of the Control of Narcotic Substance Act, 1997, against the petitioner. In support of his contention he has referred to section 21 of the said Act which only empowers a Sub-Inspector of Police or equivalent authorised in this behalf, by the Federal Government or the Provincial Government, to make entry, search, seizure and arrest without warrant in such like cases. For the sake of convenience the relevant section 21 is reproduced here under:-- ' Section 21: Power of entry, search, seizure and arrest without warrant.
(1) Where an officer, not below the rank of Sub-Inspector of Police or equivalent authorised in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from his information given to him by any person is of opinion that any narcotic drug, paychotropic substance or controlled substance in respect of which an offence punishable under the Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may
(a) Enter into any such building, place premises or conveyance;
(b) Break open any door and remove any other obstacle to such entry in case of resistance;
(c) Seize such narcotic drugs, paychotropic substance and controlled substance and other material used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act and;
(d) Detain, search and, if he thinks proper arrest any person whom he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under subsection (1.), the officer referred to in that subsection shall record the grounds and basis of information and proposed action and forthwith send a copy thereof to his immediate officer."
6. According to the learned counsel for the petitioner, it was for this reason that the F.I.R. Was in the, first instance, registered only under section 3/4 Prohibition (Enforcement of Hadd) Order, 1979. He also took me through the application Vide: which the sample of the "charas" was sent to the Chemical Examiner, Forensic Science Laboratories, Crime Branch, N.-W.F.P., Peshawar and submits that in the heading of the said application only section 3/4, Prohibition (Enforcement of Hadd)
Order, 1979 has been mentioned. Thereafter he made a reference to the remand order, dated 23-2- 1999 recorded by the Senior Civil Judge/Judicial Magistrate, 1st Class, Nowshera (Syed Kamal Hussain Shah) and submits that in this order too the offence has been mentioned as 3/4 of the Prohibition Order. Thereafter, he took me through the confessional statement of the accused, recorded by Mr. Altaf Yousaf Mahmmad, Magistrate 1st Class, Nowshera on 25-2-1999 wherein the sections of law have been again mentioned as 3/4 P.O. He further submits that even the report of the Chemical Examiner, F.S.L., Peshawar, would also show that the F.I.R. Was registered under section 3/4 P.O. He states that later on sections 6, 7, 8 and 9 of the Control of Narcotic Substance Act, 1997 were added, by somebody, in the other documents such as recovery memo. Etc. But the same have not been signed by anyone so as to show as to who had made the said additions. The learned counsel for the petitioner states that the petitioner would, be deemed to have been charged for having committed an offender punishable under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and that his case does not fall under the prohibitory clause of section 497, Cr.P.C. Because the maximum punishment prescribed for the said offence is imprisonment of either description for a term which may extend to two years or with whipping not exceeding thirty stripes and shall also be liable to fine (S.4) and that, therefore, the petitioner would be entitled to be released on bail not as a matter of grace but as a matter of right.
7. Confronted with this situation the Assistant Advocate-General had no explanation to offer. He agreed that an A.S.I. Had no, jurisdiction to register a case under sectionsk, 6, 7, 8 and 9 of the Control of Narcotic Substance Act, 1997 (ACt No,XXV of 1997).
8. Accordingly without dilating upon the merits of the case, at this stage, as it might prejudice the mind of the trial Judge, I am of the view that the petitioner has made out a case for bail. This bail petition is accepted.
9. The petitioner shall be released forthwith, if not required in any other case, provided, he furnishes bail bonds in the sum of Rs,1,00,000 (Rs,One lac only) with two sureties, each in the like amount, to the Satisfaction of the Additional Registrar/Deputy Registrar of this Court.
10. The Additional Registrar/Deputy Registrar shall see that the sureties are respectable persons, are men of means having sufficient property in their names and hail from the settled areas of District Nowshera. Attested copies of their property documents/identity cards shall be obtained from them and placed on record.