Petitioner stands charged under section 9, C.N.S. Act in case F.I.R, No.3, dated 2-6-2000, Police Station A.N.F. Haripur as on his personal search some Charas was recovered from him and he led the police party to the recovery of huge quantity of Charas weighing 10 Kgs. From his premises.
2. Bail is sought on the ground that the petitioner was not arrested in the manner as alleged. In fact he was arrested from near a shop and nothing was recovered from him and in this respect number of notables of the locality have sworn affidavits. It was next contended that the Chara_s that was recovered from the personal search of the petitioner would be less,in quantity and would not be falling within the mischief of section 9(c) of the C.N.S. Act while the remaining recovery was effected from a house which is not in the exclusive possession and control of the petitioner. That though the premises were searched yet none from the public was associated with the recovery nor any warrant of search was obtained. It was further argued that even if the warrant could not be obtained due to exigency but the Investigating Officer was obliged to have stated reasons for the raid for non--compliance of sections 21 and 22 of the C.N.S. Act. Learned counsel also contended that in view of the case-law as laid down in 2000 P.Cr.L.J. 1222 where it was held that after the enforcement of C.N.S. Act and in view of section 76 read with section 74 of the Act whereby the Act is given over--riding effect on any other law for the time being enforced and in view of a Full Bench judgment of Federal Shariat Court reported in 1998 PCr.LJ 438 where absolute discretion vested with the Investigating Officer to impose/apply either provisions of C.N.S. Act or that of Prohibition Order (P.O. IV of 1979) and also in view of judgment reported in 1999 P.Cr.LJ 63 where case has been registered against the accused under two different provisions of law then the offence punishable with the lesser sentence should be applied in favour of the accused for grant of bail.
3. I have heard learned counsel for the petitioner and the learned counsel appearing for the State.
The contention raised by the learned counsel for the petitioner with regard to application of section of law providing lesser punishment would be inapplicable in this case because the petitioner stands charged under section 9, C.N.S. Act only. Had it been a case where there was simultaneous charge under Articles 3/4 of the Prohibition Order, this argument could have been considered, of course subject to its ;validity or otherwise. The judgment reported in 2000 P.Cr.LJ 1222 is distinguishable on facts of the case because the case there registered was under Articles 3/4 of the Prohibition Order and because recovery was 37 grams of heroin, the application of section 9 of C.N.S. Act because of the quantity of the contraband would suit the petitioner therein and it was there argued that the case should have been registered under the latter enactment. The Hon'ble Judge in the said judgment has held that Act of 1997 being latter in time and more exhaustive on the subject and because of section 76 read with section 74 of the Act of 1997 shall have overriding effect, therefore, it was concluded that the Investigating Agency should have registered the case under section 9 of the Act and not Articles 3/4 of the Prohibition Order. With all respects to the Hon'ble Judge, if so held, it would tantamount to repeal the Prohibition Order of 1979 through judgments, although the laws which were intended to be repealed have been specifically and expressly repealed under section 78 of the C.N.S. Act. The application of principle of implied repeal has thoroughly been discussed in the case of Rasool Bakhsh, etc. v. State (PLD 1998 SC 177) by the Full Bench and it was held that Act, 1997 does not either expressly or impliedly repeals Prohibition Order, 1979 and was intended to be kept alive. A reference to section 12(a) of C.N.S. Act is also relevant here where assists derived from narcotic offences including an offence under the Prohibition Order, 1979 are prohibited.
The principle of overriding effect of a later Statute is to be applied where there is inconsistency in the law already enforced and the later Statute. The preamble of Prohibition Order, 1979 and that of C.N.S. Act would clearly show that their promulgation and enforcement was for different objects and achievements. There for, I am of the view that notwithstanding provisions of section 76 read with section 74 of the C.N.S. Act, the law which was not repealed .i.e. Prohibition Order, 1979 is still holding the field.
I am also fortified in my view because of section 73 of the C.N.S. Act where under nothing contained in this Act shall affect the validity of any law for the time being in force which provided punishment not imposed by this Act or which provides a greater punishment in degree than a correspondingrestriction imposed or by a corresponding punishment provided for by or under this Act where trafficking in narcotic or other similar matters are I there.
5. Reverting to the merits of the case, there is allegation of recovery of one Kilogram of Charas from the pocket of the person of the petitioner and remanding 9 Kgs. Was allegedly recovered from residential house at his--pointation, one fails to understand as to why and how one Kilogram Charas could be kept in the side pocket of a shirt. The allegation of such recovery creates doubts and takes the case of the petitioner to that extend to be a case of further inquiry for the purpose of bail, particularly when the petitioner is said to be still in his house where 9 Kgs.
Charas was lying in a kettle but because if the entire recovery was said to be made from the premises of the house, the petitioner could not have been successfully linked with the immediate possession of the Charas probably it was, therefore, recovery from the personal possession is also shown.
There was prior information that the petitioner has received a heavy consignment of contraband, therefore, if warrant could not be obtained at the very outset, the Investigating Officer was duty bound to have stated the reason for searching the premises without search warrant and also stated reasons for not associating locals with the recovery notwithstanding the provisions of section 25 of the C.N.S. Act. In this case, the contraband allegedly recovered have been sent to the Chemical Examiner for analysis and the report whereof is available on the file to the effect that the contraband was Charas. Under section 34 of the Act, the Federal Government shall set up a Federal Narcotic Testing Laboratory or may notify any other laboratory for carrying out the purpose of this Act. Under the said section a Provincial Government also is competent to set up Provincial Narcotic Test Laboratory. The report in the instant case has been obtained from Assistant Chemical Examiner to Government of Punjab, Rawalpindi while the occurrence took place within the jurisdiction of Police Station A.N.F. Haripur, Province of North-West Frontier Province. The legality and admissibility of report obtained and prepared in the Province of Punjab in the light of section 34 is also subject to scrutiny. It is to be seen if such ' laboratory was notified by the Federal Government and if so whether for whole of Pakistan or only for the Province of Punjab and whether under the law the A.N.F. Of Haripur could by-pass the Provincial Chemical Laboratory and could have sent the samples for report to another Province.