' Pursuant to prior secret information, the staff of Customs Intelligence, Peshawar on 9-3-1999 at 10- 00 hours, during the course of picket at G.T. Road near Khairabad, intercepted truck No,C- 8496/Peshawar driven by petitioner Sucha Gul, cursory checking of the vehicle uncovered the presence of narcotics in the specially made secret cavities of the truck over the driver seat.
Thorough search of the vehicle in the office of Customs Intelligence, Peshawar led to the recovery of 710 Kgs. Charas. The petitioner was accordingly arrested and booked under sections 6, 7, 8 and 9(c) of Control of Narcotic Substances Act, 1997 read with sections 156(1)(89), 157, 178, 26 and 2(s) of Customs Act, 1969. Abortive attempt before the Judge, Special Court, Nowshera obliged the petitioner to approach this Court through the instant petition.
2. Arguments of Mr. Abdur Rauf Gandapur, Advocate appearing for the petitioner and Mr. Hafiz Aman, learned Federal Counsel, for the State heard and record perused carefully.
3. As observed above, the petitioner in this case is charged under the provisions of Customs Act as well as provisions of Control of Narcotic Substance Act, 1997 (hereinafter to 'be referred as the Act).
Section 51 of the Act has put specific bar on the grant of bail in offences falling under the purview of section 9(c) of the Act. To appreciate the provision of this Act, it would be more appropriate to reproduce the said section.
"Section 51. No bail to be granted in respect of certain offences-- (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.
(2) In the case of other 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."
The above provision has not only excluded the applicability of sections 496 and 497, Cr.P.C. But has also excluded any class of people from availing bail if charged under section 9(c) of the Act which reads as such:-- "Section 9. Punishment for contravention of sections 6, 7 and 8.---Whoever contravenes the provisions of sections 6, 7 or 8 shall be punishable with--
(a) imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug psychotropic substance or controlled substance is one hundred grams or less;
(b) Imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram:
(c) death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotic drug psychotropic substance or controlled substance exceeds the limits specified in clause (b): ' Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life."
4. The learned counsel for the petitioner has tried to argue that bail is restricted to those offences wherein the punishment is only death and that under clause (c) of section 9 of the Act, the punishment provided is not only death but also imprisonment for life or imprisonment of fourteen years, therefore, petitioner is not prohibited from availing concession of bail. This argument of the learned counsel for the petitioner is totally misconceived and devoid of force. Control of Narcotic Substances Act is a special Statute enacted under peculiar circumstances. Realizing, increase in the business of drug trafficking etc. The Legislature was forced to legislate this law in the year 1996 as an Ordinance (Control of Narcotic Substances Ordinance) though numerous laws related to the drugs were in existence. Still realizing the severity of spreading and penetration in the society of this dirty business, yet stricter law in the shape of Control of Narcotic Substances Act was passed.
5. It is always in the discretion of the Court that where facts and circumstances of the case so demand, inflict lesser punishment in the offences punishable with death. For example, in the case of murder, the normal penalty for the murderer is death sentence, still where mitigating circumstance exists, sentence of imprisonment for life is awarded. There is hardly any Statute in existence where the punishment is none but death. Alternative punishment is always there to be awarded the sentence according to the facts and circumstances of the case.
6. Arguing the case on merits, the learned counsel for the petitioner submitted that provision of section 103, Cr.P.C. Has not been complied with. We are, no doubt, of the considerate view and it is always desirable that the recovery of the offended goods should be witnessed by the independent persons from the public but we cannot ignore the fact that in our society where the strong drug mafia has spread to each and every corner of the country, no one from the public would even dare to come forward to be cited as witness and incur the enmity of these gangsters. In the absence of any enmity or reason, the recovery of seizing Agency witnessed by its official cannot be doubted.
As far as the objection of the learned counsel that samples were drawn only from three slabs of the seized property, it is not possible for the seizing agency to extract sample from each and every slab of 710 Kgs. Charas. The report of the Chemical Examiner is admittedly positive.
7. It may be remembered that the Court has no soft corner for the traffickers of narcotics who care least about the younger generation of this nation. The toll of addicts is increasing at alarming speed. It is this group who had always brought bad name to the country in the international community by supplying it beyond the border.
8. In view of the above, I do not feel justified to extend the concession of bail to. The petitioner. This petition is accordingly dismissed.