EJAZ AFZAL KHAN, J.---This Full Bench has been constituted to examine whether the provisions contained in sections 21 and 22 of the Control of Narcotic Substances Act of 1997, hereinafter called, the Act, are directory or mandatory and if any of the acts mentioned therein is done in violation of these provisions what would be the effect thereof on the case as a whole?
2. The circumstances, necessitating the examination of this aspect of the abovementioned provisions of the Act are that one Nasrullah hereinafter called, petitioner, on having been found in possession of 7 Kgs. Of Charas was arrested and consequently a case under sections 6, 7, 8 and 9 of the Act was registered against him vide F.I.R. No,49 dated 22-1-2000 in the Police Station Baddaber, when failed to get the concession of bail from the Judge Special Court, moved this Court for his enlargement on bail.
3. The petition was heard by his Lordship Mr. Justice Tariq Pervez. The concession of bail before his Lordship was mainly sought on the ground of violation of the provisions of sections 21 and 22 of the Act on the strength of the judgments of this Court which were authored by my Lord the Chief Justice in Criminal Miscellaneous No,646 of 2000 (Gulyar Khan v. The State, decided on 19-7-2000, Criminal Miscellaneous No,767 of 2000 (Saleem v. The State) on 18-7-2000 and another judgment of his Lordship, as he then was, Mr. Justice Jawaid Nawaz Khan Gandapur in (Muhammad Ikram v.
The State 2000 PCr.LJ 891).
4. During the course of arguments yet another judgment of an Hon'ble Division Bench of this Court delivered in the case of Qeemat Hassan v. The State 1999 PCr.LJ 824 was brought to the notice of his Lordship in which a view contrary to the view expressed in the judgments of the aforesaid three Criminal Miscellaneous petitions, was taken whereby the Hon'ble Bench after holding the provisions of sections 21 and 22 of the Act to be directory, refused to grant bail, so his Lordship Mr. Justice Tariq Pervez, in view of these conflicting judgments made a reference to the Hon'ble Chief Justice who after considering the matter constituted a Full Bench to hear this case in order to settle the controversy once for all with regard to the application of sections 21 and 22 of the Act.
5. The learned counsel for the petitioner Mr. Khushdil Khan, Advocate, while appearing before the Full Bench contended that an A.S.-I. Is not an authorised Officer within the terms of sections 21 and 22 of the Act, therefore, the arrest and seizure so made by him are illegal and of no consequence.
He by reading out sections 21 and 22 of the Act contended that they are mandatory in nature and neglect to comply therewith would invalidate and vitiate the entire proceedings. He, next contended, that it is well-established principle of law that where a Statute requires a thing to be done in a particular manner that has to be done in that way or not at all. In order to add strength to his aforesaid argument he placed reliance on the case of Khalid Nawaz v. The State 1998 PCr.LJ 2008. The learned counsel while dilating upon the mandatory nature of the provisions of the Act also placed reliance on a recent judgment of the Hon'ble Supreme Court in the case of Muhammad Afzal v. The State PLD 2000 SC 816 wherein it was held that where C.I.A. Personnel despite knowing that they were not empowered to investigate the case had done so was clear violation of law and was also against the principle of supremacy of law.
6. On the other hand, the learned Additional Advocate-General Mr. Imtiaz Ali, submitted that the provisions of sections 21 and 22 of the Act are directory and not mandatory in nature as no consequence of neglect to comply therewith has been mentioned in the Statute. By placing reliance on the judgment of the Hon'ble Supreme Court in the case of State through Advocate- General, Sindh v. Bashir and others PLD 1997 SC 408, he submitted that if an officer other than the one authorised by the Statute has made entry, search, seizure and arrest in a case, this will not affect the validity of the investigation and if, he supplemented his argument, a case somehow or the other has been investigated by an officer not so authorised by the Act, in that case the panacea provided by section 156 of the Cr.P.C. Can be brought to the rescue of such investigation.
The learned Additional Advocate-General at the end by affirming the directory nature of the provisions of the Act also placed reliance on a Division Bench judgment of the Lahore High Court in the case of Muhammad Ramzan v. Muhammad Iqbal, Sub-Inspector of Police, District Kehari Mitroo and another 1998 PCr.LJ 828 wherein the Hon'ble High Court declined to quash the proceedings on the ground of violation of sections 21 and 22 of the Act.
7. We have carefully considered the arguments of the learned counsel for the parties and the case-law so produced by them. Before we express our opinion on either of the sides, we think it proper to examine all the provisions of the Act in order to know its scheme and legislative intent behind it. A bare reading of the Act from preamble to the end would show that the raison deter for legislating this law was to consolidate and amend A the laws relating to drugs and the Legislature while enacting this law was fully alive of the other laws and the loopholes therein, that is why the process of consolidating and amending them was embarked upon. If on the one hand, it provided,, like all other laws, for the punishment of offenders, it also on the other hand, provided to regulate the treatment and rehabilitation of addicts and for matters connected therewith an incidental thereto. In short, it can be seen that an exhaustive effort was made to cover every conceivable aspect of the phenomenon that plagued our society eversince 1979. It is pertinent to note that people who made fortune or piles of money out of this business were not allowed to go scot-free whether at national or international level acid on all fronts an effective and orchestrated endeavour was made to deal with them from the origin to the ultimate end of the crime. The provisions contained in Chapters IV, VII and VIII are clear examples in this behalf. It is to be seen as to what was the intention of the Legislature vis-a-vis the provisions of the Act which was so perfectedly enacted with an all encompassing legislative wisdom. Before we discuss this aspect of the Act and answer the reference, it is worthwhile to see what is the test to determine as to the directory or mandatory nature of a provision of law. In Corpus Juris Secundum, Vol. 82, Statute at page, 869 the learned author has dealt with this aspect of Statute as under:-- "While there is no absolute test by which it may be determined whether a statute is mandatory or directory the primary rule is to ascertain the legislative intent as revealed by an examination of the whole act." In Halsbury's Laws of England, the learned author has expressed as follows:-- "No universal rule can be laid down for determination whether the provisions are mandatory or directory in each case, intention of the Legislature must be ascertained by looking at the whole scope of the Statute and, in particular, at the importance of the provisions in question in relation to the general object to be secured." In Liverpool Borough Bank v. Turner (1861) 30 1-1 Ch. 379, at p.380 Lord Penzance observed as follows:-- "No universal rule can be laid down as to whether a mandatory enactment shall be construed directory only or obligatory on an implied nullification for disobedience. It is the duty of the Courts of justice to try to get the real intention of the Legislature by carefully attending to the whole scope of the Statute to be construed."
8. From the above-quoted passages it is quite clear that no rule ofuniversal application can be laid down. However, a duty is always cast on the Courts to carefully attend to the whole scope of the statute to be Construed to determine whether the provisions thereof are mandatory or otherwise.
9. In another case of Howard v. Bodington (1877) 2 PD 203, at p.211 Lord Penzance supported this view in the dictum that still holds true:-- "I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider: the importance of the provisions that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory... I have been very carefully through all the principal cases, but upon reading them all the conclusion at which I am constrained to arrive in perusal of these cases. They are on all sorts of subjects. It is very difficult to group together, and the tendency of my mind, after reading them, is to come to the conclusion which was expressed by Lord Campbell in the case of Liverpool Bank v. Turner."
10. After quoting some of the abovementioned passages the Hon'ble Supreme Court in one of the judgments rendered in the case of Atta Muhammad Qureshi v. Settlement Commissioner PLD 1971 SC 61 observed as under:-- "One other principle which has been enunciated in this behalf is that as a general rule, statutes, which enable person to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language. At page 226 of Craies on Statutory Laws, 6th Edition, this rule is stated thus: That when a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly applied. Bearing these principles in mind, I have reached the conclusion that sub-clause (5) of section 20 of the Act is mandatory in character and places a limitation on the jurisdiction of the revising Authority not to make any adverse order against a person without giving him opportunity to show- cause against it. If such an order is made without fulfillment of this prerequisite, it would certainly lack jurisdiction. "
11. The above-cited paragraphs from the celebrated and classical works of law and the judgment of the Hon'ble Supreme Court make it crystal clear that it is always for the Court to ascertain the legislative intent by examining the whole Act. While proceeding to examine the Act for ascertaining the nature of its provisions, sections 20, 21, 22 and 26 merit a careful reading which are reproduced as follows:-- Section 20. Power to issue warrants.--(1) A Special Court may issue a warrant for the arrest of any person whom it has reason to believe to have committed an offence punishable under this Act, or for the search whether by day or by night of any building, place, premises or conveyance in which he has reason to believe any narcotic drug, psychotropic substance controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed.
(2) The officer to whom a search warrant under subsection (1) is addressed shall have all the powers of an officer acting under section 21. 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 this 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 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 his information and proposed action and forthwith send a copy thereof to his immediate superior officer. Section 22. Power to seizure and arrest in public places.---Anofficer authorised under section 21 may--
(a) seize, in any public place or in transit any narcotic, drug, psychotropic substance or controlled substance in respect of which he has reason to believe that an offence punishable under this Act has been committed and alongwith such drug substance or any other article 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 and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic, drug, psychotropic substance or' controlled substance in his possession and such possession appears to him to be unlawful, arrest him. Section26.--Punishment for vexatious entry, search, seizure or arrest.--Any person empowered under section 20 or section 21 who--
(a) without reasonable grounds of suspicion, enters or searches or causes to be entered or searched any building, place, premises or conveyance;
(b) vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic, drug, psychotropic substance, controlled substance or any other article or document relating to any offence under this Act; and
(c) vexatiously and unnecessarily detains, searches or arrests any person; shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine which may extend to twenty-five thousand rupees.
12. A perusal of section 20(2) reveals that the Special Court issuing the warrant is supposed to ensure that the officer to whom a search warrant under subsection (1) is addressed shall have the power of an officer acting under section 21. A keen look at sections 21 and 22 would unmistakably indicate that the makers of the law never intended that an action under the provisions of sections 21 and 22 should be taken by an officer below the rank of Sub-Inspector of Police or equivalent. It is to be noted that a Sub-Inspector by virtue of his office alone is not competent to proceed under the above provisions unless he is authorised in this behalf by the Federal or Provincial Government.
The law makers, it would thus be seen, by visualizing certain situations dispense with warrant for arrest or search when obtaining hereof would afford a person an opportunity for the concealment of evidence or facility of his escape but under no circumstances permitted any officer below the rank of Sub-Inspector of Police to do any of the acts mentioned in sections 21 and 22. A perusal of section 26 will leave absolutely no manner of doubt about the mandatory nature of the provisions of the Act because according thereto even vexatious entries, searches, seizures or arrests could never be conceived by the Legislature to be made by an officer not empowered and authorised under sections 20 and 1.
13. The arguments of the learned Additional Advocate-General that where the consequence of neglect to comply with the provisions is not mentioned in the Statute, it shall be deemed to be directory is devoid of force in view of the paragraphs quoted above. The other argument of the learned Additional Advocate-General that if an officer not empowered or authorised has made entry, search, seizure or arrest, it can be regularized by invoking the provisions of section 156(2) of the Cr.P.C. Is equally devoid of force in view of the provisions of section 25 of the Act because the provisions of the Cr.P.C. Would apply only if the acts done by the Police Officer are not consistent with the provisions of sections 20, 21, 22 and 23 of the Act. Section 25 thus, runs 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 insofar as they are not consistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections."
14. When seen in this context the case of State through Advocate-General, Sindh v. Bashir and others (supra) seems to have no perceptible relevance or application to the case in hand.
Moreover, in the case of Muhammad Afzal v. The State (ibid) the Hon'ble Supreme Court has now taken quite a different view. The relevant paragraph is reproduced as below: -- "8. The record reveals that though C.I.A. Personnel knew it very well that they were not empowered to investigate this matter, yet, they had done so and in this way deliberately violated the provisions of section 156, Cr.P.C. Although they had prior information about the offence which was likely to be committed, yet, they had not passed on this information to the concerned police and took upon themselves the task of investigation which, we feel, was not proper. That they had done was in violation of law and was also against the principle of supremacy of law."
15. A reference to yet another provision of the Act contained in section 72 will not be out of place which provides:-- "All prohibitions and restrictions imposed by or under this Act on the import into, export from, Pakistan and transshipment of narcotic, drugs, psychotropic substances or controlled substances shall be deemed to be prohibitions and restrictions imposed by or under the Customs Act, 1969 (IV of 1969) and the provisions of the Act shall apply accordingly: Provided that notwithstanding anything contained in the Customs Act, 1969 (IV of 1969) or any other law for time being in force, all offences relating to narcotic, drugs, psychotropic substances or controlled substances shall be tried under the provisions of this Act: Provided further that where the Officers of Customs apprehends a person involved in any offence relating to narcotic, drugs, psychotropic substances or controlled substances shall be empowered to carry out inquiry and investigation in the same manner as an officer authorised under this Act."
A fleeting glance of this section would make it clearer still that every conceivable eventuality was all along in the mind of the Legislature that is why even the Customs Officers were empowered to carry out the inquiry and investigation in the same manner as an authorised Officer under the Act, thus this too leaves no room for an officer below the rank of Sub-Inspector to figure anywhere in the scheme of this Act. It would, therefore, follow that the officers below the rank of S.-I. Are just non-entity for the purposes of this Act who can never be made entity by having recourse to the interpretative niceties. The provision contained in section 21 of the Act satisfies still another test recognized by another authoritative work known as Cruise on Statute law which reads as under:-- "If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceedings." When this section is read in the light of this test, it seems and sounds mandatory inasmuch as it is couched in negative language as the expression "Sub-Inspector" is preceded by the words "not below the rank of". The passage reproduced above was referred with approval in a judgment of the Hon'ble Supreme Court in the case of Muhammad Aslam v. The State 1991 SCM R 599. Above all else it is by now axiomatic that where a thing is provided to be done in a particular manner it has to be done in that way or not at all. In this connection a reference to the case of Khalid Nawaz v. The State (ibid) in which the provisions contained in sections 21 and 22 of the Act alone were subject- matter of focus, would be quite useful. The relevant paragraph of the same is reproduced as under:-- "5. We have heard the learned counsel for Khalid Nawaz appellant as well as the learned State Counsel and gone through the record before us. Learned counsel for the appellant has referred to section and 22 of the Control of Narcotic Substances Ordinance (VI of 1995) applicable on the relevant date of recovery (26-8-1995) and argued that an officer not below the rank of Sub- Inspector of Police could not seize drugs etc. And also could not detain or search any person whom he had reason to believe to have committed an offence punishable under the Ordinance who was not competent to arrest him. As against the aforesaid provisions of law learned counsel for the State could not bring to our notice any codified law. A perusal of section 22 of the Control of Narcotic Substances Ordinance (VI of 1995) when read in the light of section 21 of the same Ordinance has made us to hold that Muhammad Bashir, A.S.-I. Was not competent and having authority to detain, search and arrest Khalid Nawaz appellant for the recovery of the narcotics. We express the view that the power and authority to set the law in motion is linked with the substantive jurisdiction without which the proceedings could not be initiated and consequently could not be processed with by Muhammad Bashir, A.S.-I. It would also be proper to refer the maxim:-- A communiobservation on estrecedendum---Where a thing was provided to be done in a particular manner, it had to be done in that manner and if not so done, the same would not be lawful. If the working of Muhammad Bashir, A.S.-I. Is affirmed there would be administrative choas resulting in the judicial anarchy. This is the crux of the matter to make us pass the order of exonerating of Khalid Nawaz appellant."
16. As a sequal to what has been discussed above, we have no hesitation to hold that the provisions of the Act are mandatory and observance thereof would be imperative to the validity of entry, search, seizure and arrest and non-compliance therewith would invalidate the whole action from the inception to the end.
17. Now comes the application for bail. From the data so far available on the record though the recovery of seven K.Gs. Of Charas from possession of the petitioner has not been convincingly disputed, nonetheless, in view of the violation of the mandatory provisions of the Act, we have no alternative but to accept this application and direct the release of the petitioner on bail provided a bond in the sum of Rs,4,00,000 (Rs, Four Lacs) with two local, reliable and resourceful sureties is furnished to the satisfaction of the learned Special Judge concerned.
(Sd.)
EJAZ AFZAL KHAN, JUDGE.
KHALIDA RACHID, J.---I have the honour to go through the judgment of my learned brother Mr. Justice Ejaz Afzal Khan. I candidly agree with the valuable views of my learned brother Mr. Justice Ejaz Afzal, I have no qualm with the mandatory aspect of the law. I understand the intention of the law-maker on the subject. In the case of Qeemat Hassan v. State (1999 PCr.LJ 824) wherein a huge quantity of narcotics was involved, was not strenuously argued by the learned counsel and no able assistance was extended. I am personally of the view that the drug traffickers should be dealt with strictly and should not be allowed to take advantage of the loopholes of the law, because they are a group of extreme flagitious and immoral people of the society and they manage to succeed by hook or by crook in getting benefits of aperture in the law. After escaping from the hands of the law, keep on indulging in the ugly business which is exterminating the people of our society like termites. In such an event when credibility of the country has suffered a lot in the International Community. Pakistan has been literally isolated from the comity of civilized Nations.
2. While dealing such cases in the Court, a Judge always desires to do justice with the parties, society and humanity at large in accordance with law and would also like to take into consideration the equity aspect too.
3. Under section 103, Cr.P.C. Which is undoubtedly, a mandatory provision and it is obligatory on the officer to execute a search warrant by associating two or more respectable inhabitants to witness the search, but there are cases where the police officers, for certain reasons, are unable to procure search association of the witnesses, may be due to fear of the accused person or avoid the enmity are relieved of such obligations by the superior Courts and apex Court. There are extraneous circumstances where police witnesses are considered as good as private witnesses.
4. No doubt, law-makers by introducing the restriction of Sub-Inspector meant to get the senior members of Police Force involved for fair and transparent investigation. But it has been observed that in such like cases police force is least concerned about the sanctity of the law and leaves loopholes to distort the case. Therefore, directions be issued to the Inspector-General of Police that no police officer below the rank of Sub-Inspector be allowed to investigate in such-like cases. Any deviation to thelaw should in future be considered as the non-compliance of the orders, of the Courts.
(Sd.)
KHALIDA RACHID, J. SARDAR MUHAMMAD RAZA KHAN, C J.---I have gone through the learned discourse rendered by my brother Hon'ble Mr. Justice Ejaz Afzal Khan and I fully agree with him, as I had already given numerous judgments holding the same view in the light of which this larger Bench needed to be constituted.
2. I would only add to the leading judgment saying that the Control of Narcotic Substances Act is a stringent law, so far as the rights of accused are concerned. Various deviations from the normal law have frequently occurred and it is quite harsh even against the concession of bail. In the wake of this background, certain restrictions of limitations have been placed on the Prosecution and Investigating Agencies. This is an effort to strike a balance between the accused and the prosecution. In these circumstances the superior Courts have always maintained such balance and have avoided to give latitude to the prosecution by holding from time to time that in such-like laws with harsh provisions against the accused, the limitations placed on the Investigating Agencies and Prosecution Agencies must be strictly complied with. This is another reason that we hold that the provisions of the sections of law in question are mandatory and not directory.
(Sd.)
Sardar Muhammad Raza Khan, C.J.