' On 23-10-2001, Head Constable of Police Station Alpuri stopped a motor car at Check Post Shangla and on its search recovered 14 Kgs. Of Charas from the secret cavities. The occupant of the car, Gharibullah, resident of Gul Abad, Peshawar was arrested and taken to the Police Station alongwith the car. A case under section 9(3) of the Control of Narcotic Substances Act was registered. The accused was declined bail by the lower Courts and has now moved the High Court.
2. The learned counsel appearing for the petitioner pointed out that search and arrest under the Control of Narcotic Substances Act cannot be carried out by Police Officer below the rank of Sub- Inspector as now laid down by a Full Bench of this Court. This in itself, it was contended, entitles the petitioner to bail. The learned counsel representing the State conceded the legal position as regards C.N.S.A. But contended that the petitioner can still be charged and tried under the Prohibition Order, 1979.
3. This Court has undoubtedly declared that search and arrest of an accused by a police officer below the rank of Sub-Inspector under the C.N.S.A. Is illegal and would entitle an accused to bail.
However, even if the petitioner is charged under the Prohibition Order the maximum punishment for trafficking Charas, regardless of its quantity, is 5 years imprisonment. This would take the case out of the ambit of the Prohibitory Clause of section 497, Cr.P.C. The application is, therefore, allowed and the petitioner is admitted to bail in the sum of Rs,2,00,000 (Rupees two hundred thousand) with two sureties each in the like amount to the satisfaction of the Illaqa/Duty Magistrate.