' On 6-12-1998 when the petitioner was about to travel in Khyber Mail (Economy Class) he was apprehended by Muhammad Azim, A.S.I., of Police Station, Railway Cantt. Peshawar at Peshawar Railway Station. The petitioner was found in possession of 1200 grams of contraband Charas which was hidden in a Water Cooler. Accordingly F.I.R. No,246 was registered under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 read with section 9 of the Control of Narcotic Substances Act, 1997 (Act No,XXV of 1997) on 6-12-1998 against the petitioner at Police Station, Railway Cantt. Peshawar.
2. After his arrest the petitioner went to the Court of the Sessions Judge, Peshawar (Mr. Shah Jee Rehman Khan) for bail who by his order, dated 9-2-1999, refused to enlarge him on bail. Hence this petition.
3. Mr. Akhtar Zaman, Advocate, learned counsel for the petitioner contended, in the main, that A.S.I.
Could only register a case against the petitioner under section of the Prohibition (Enforcement of Hadd) Order, 1979 and that he had no jurisdiction, whatsoever, to have registered a case under sections 6, 7, 8 and 9 of the Control of Narcotic Substances Act, 1997 (Act No,XXV of 1997). In support of his contention he placed reliance on 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. For the sake of convenience the relevant section is reproduced:--- 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 authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug, psychotropic 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, psychotropic substances 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 think 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."
4. The . Learned counsel for the petitioner stated that the petitioner would, therefore, be deemed to have been charged for having committed an offence punishable under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and that his case would not fall under the prohibitory clause of section 497, Cr.P.C., because the maximum punishment prescribed for having committed an offence punishable under section 4 is imprisonment of either description for a term which may extend to two years or with whipping not exceeding thirty stripes and shall be liable to fine.
5. The learned counsel for the petitioner further stated that in point of fact 1200 grams of "Charas" was allegedly recovered from the possession of the petitioner and not 1200 grams of "heroin", as has been mentioned in the impugned order of the Sessions Judge, wrongly. According to him it was probably for this reason that the Sessions Judge had refused to admit the petitioner to bail and that this fact alone would show the non-application of the judicial mind by the Sessions Judge. He prayed that in the facts and circumstances of this case the petitioner be granted bail.
6. Confronted with this situation the Assistant Advocate-General conceded and rightly so that an A.S.I. Had no jurisdiction to register a case under the Control of Narcotic Substances, Act, 1997 (Act No, XXV of 1997).
7. 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 petition for bail is accepted.
8. The petitioner shall be released forthwith, if not required in any other case, provided he furnishes bail bonds in the sum of Rs,50,000 (Rs, Fifty thousand only) with two sureties, each in the like amount, to the satisfaction of the Additional Registrar/Deputy Registrar of this Court.
9. The Additional Registrar/Deputy Registrar shall see that the sureties are respectable persons, are men of means having sufficient property in their names and bail from the settled areas of District Bannu. Attested copies of their property documents/identity cards shall be obtained for record.