' My this single judgment shall dispose of Criminal Miscellaneous No,306 of 2002 (Gul Said v. The State), Criminal Miscellaneous No,351 of 2000 (Naeem Jan v. State), Criminal Miscellaneous No,435 of 2002 (Juma Gul v. State), Criminal Miscellaneous No,438 of 2002 (Shahid v. State) and Criminal Miscellaneous No,395 of 2002 (Mst. Firasat v. State) because the law points urged in favour of the petitioners therein are common except that there are minor difference of facts of the cases.
' In case of Gul Said, from the personal possession of the petitioner 225 grams, heroin was recovered on 4-2-2002 and a case under section 9 of C.N.S. Act stands registered against him.
' Naeem Jan petitioner is charged in case F.I.R. No,102, dated 9-2-2002 when from his personal possession 5 Kgs. Charas was recovered.
' In case of Mst. Firasat, petitioner is a lady and from her possession 1000 grams heroin was recovered on 28-12-2001 when police raided her house.
' Juma Gul has applied for bail in case F.I.R. No,222, dated 9-3-2002 as from his possession Shahid Hussain, S.-I. Has allegedly recovered 3 Kgs. Of Charas.
' In case of Shahid, on 9-3-2002 vide F.I.R. No,218 from the house of the petitioner police has recovered 10 Kgs. Of Charas besides a kalashnikov and a .30 bore pistol.
2. I would first like to give factual arguments in each case as addressed at the Bar by learned counsel for the petitioners.
' For Gul Said petitioner it is argued that out of total recovered 225 grams only one gram was sent to the Chemical Examiner for analysis, that although the recovery was made on 4-2-2002 but the report of the Chemical Examiner would show that sample was received on 11-2-2002 while the report was prepared on 20-3-2002 and such delay would be crucial to the case of the prosecution.
It is also argued that Fazle Hadi complainant of the case is an A.S.-I. And in view of section 21 read with section 22 of C.N.S. Act he was incompetent either to arrest, seize or investigate the case.
Submission is made that in view of quantity recovered the offence would fall under section 9(b) punishable up to seven years' imprisonment. On this ground also the petitioner is entitled to bail.
' In case of Naeem Jan, learned counsel argued that Zafar Ali, A.S.-I. Would not be competent to investigate, seize and arrest the accused in view of bar as contained in sections 21 and 22, C.N.S. Act, that quantity though recovered was 5 Kgs. But only four grams were sent for chemical analysis.
As such even if petitioner is found to be guilty that would be to the extent of four grams for which there is positive report of the F.S.L. Submission is made that despite section 25 of C.N.S. Act the provisions of section 103, Cr.P.C. Should have been adhered to. Also that no public witness has been associated with the process of recovery. Finally it is submitted that according to the School Leaving Certificate the petitioner is a minor i,e, below 16 years of age and on the ground of age in view of section 497(1), Cr.P.C. He will be entitled to concession' of bail particularly when there is no history of he being involved in selling the narcotic in the past. Also that site plan is not prepared in the case.
' On behalf of Mst. Firasat it is argued that petitioner is a female with a suckling baby, that recovery is effected from the house and falsely shown to be recovered from the possession of the petitioner and that the alleged confession is exculpatory and the alleged recovery was made in fact when Khwaidad owner of the house while being interrogated in some other case admitted that certain heroin was lying in his house.
' For Juma Gul petitioner contention is raised that though 3 Kgs. Of Charas was recovered but only one gram was sent to chemical analysis and that the recovery memo. Is not attested by independent witnesses except the police officials. Also that allegation against the petitioner is that he indulges in selling narcotic but at the time of apprehension no money was recovered from his person nor any customer was present around and that the petitioner is a first offender and is entitled to bail. It is added that if in case the petitioner was selling the narcotic it should have been in small quantity but .No such scale for sale of small quantity has been recovered.
' While arguing the case of Shahid, learned counsel for the petitioner states that warrant of search was issued in the name of Shahid Hussain, S.-I. But the entire record would show that the complainant is Shafiullah, S.H.O. Who himself is the raiding officer and who has prepared the recovery memo. Thus, the provisions of section 20 of C.N.S. Act were not complied with. Besides, that warrant was obtained for three days and was not executed until the alleged recovery was planted against the petitiorer. Also that the recovery memo. Does contain the signatures of attesting witness but below or above the designation of S.H.O. Who has allegedly prepared the recovery memo. His signatures are absent. He also argued that no scale was recovered nor site plan prepared and only negligible quantity was sent for chemical analysis.
3. As observed in the first para. That in all the above cases narcotic stands recovered from the persons of the accused or from places immediately under their control and because the following factual as well as legal points are common which I reproduce for ready reference and are as under:--
(1) In some cases investigation is carried out by a person below the rank of S.-I., hence violative of sections 21 and 22 of C.N.S. Act.
(2) Where a negligible quantity of narcotic recovered has been sent for chemical analysis and the report though in positive but should be considered to that extent only. That in almost none of the cases site plan has been prepared. That provisions of section 103, Cr.P.C., have been violated and no person from the public is associated with the recovery.
(3) That some of the petitioners from whose some recovery has been allegedly made but the quantity thereof is such which would bring their case within the mischief of section 9(b), C.N.S. Act punishable up to seven years' imprisonment only, therefore, they will be entitled to bail.
(4) That in some of the cases besides section 9, C.N.S. Act, Articles 3/4, Prohibition Order have also been applied and the general principle is that where there are two Statutes applicable on the subject the one prescribing lesser sentence should be applied against the accused and also that while considering the bail application the Court shall not keep in its mind the maximum sentence provided under the law but must keep in mind the sentence likely to be awarded, however, with reference to the quantity recovered.
(5) One or two of the petitioners have claimed bail on the ground of 'minority while Mst. Firasat has pressed into service her sex i,e, being female.
4. Learned counsel appearing for the State have jointly argued the cases and submitted that in cases of narcotic where police has got no ill-will against the petitioner and when there is positive report of the Chemical Examiner that sample sent contained contraband and where all the petitioners were found either directly in possession or narcotic were lying under their control. In view of section 29, C.N.S. Act there will be a presumption drawn against them which will disentitle them to the concession of bail notwithstanding their minority and fair sex or any technical flaw in the investigation of the case.
5. Number of judgments have been cited by learned counsel for the petitioners on the point that A.S.-I. Is not competent to investigate. Also on the point that if small quantity of the narcotic/drugs are sent to the Chemical Examiner the report only to that extent would be taken against the petitioner at bail stage. They have also cited judgments that where facts of the case constitutes one offence but under two different Statutes, the Statute more favourable to the accused should be pressed into service and also on the point that provisions of section 103, Cr.P.C.. Are equally applicable to the search of the person and are not restricted or confined to search of place.
6. At the very outset I would refer to all the cases as cited by learned counsel for the petitioners but none of the precedent judgments refers to section 51 of the C.N.S. Act. All bail applications for an offence punishable under C.N.S. Act are bound to be filed, argued and decided within the parameters and scope as provided in section 51 of the Act (ibid). Any reference to section 497, Cr.P.C., be with regard to minority, fair sex or reasonable grounds to believe that there is room for further inquiry, are not relevant. Section 51 of the C.N.S. Act is reproduced as below:-- "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."
7. Under this section no bail can be granted in respect of offences committed under the Act and provisions of sections 496 and 497 of Criminal Procedure Code have expressly been excluded.
However, there is an elbow room left at the discretion of the Court under subsection (2) of section 51, C.N.S. Act, where too the Statute lays down that bail should not normally be granted unless the Court is of the opinion that it is a fit case for grant of bail.
' Fit case for grant of bail would depend on facts of the individual case. Section 51 of the Act (ibid) being special provisions and it has expressly excluded the provisions of sections 496 and 497, Cr.P.C., it is but admitted legal position that when there is a general law and there is special law on the subject then the provisions of special law shall prevail.
' Bail, therefore, whether refused or allowed, such power is not exercised by the Court under section 497, Cr.P.C. But would be under section 51 of the C.N.S. Act.
8. As I have referred somewhere above to the phrase "it is fit case for grant of bail" I am of the view that language used can be taken as paramateria to the language used in section 497(2), Cr.P.C.
Under the provisions of section 497, Cr.P.C. If there are no reasonable grounds to believe that accused is guilty of the offence punishable with death, imprisonment for life or ten years and there is sufficient scope for further inquiry, accused would be entitled to bail. Here in the special law Legislature has used the words "a fit case for grant of bail" which would require rather more favourable circumstances appearing on the record in favour of the petitioner to get entitled to the concession of bail
9. To meet the legal or technical objections regarding power of a Police Officer about arrest or seizure or search, the application of Statute prescribing lesser sentence, the sending of samples for chemical analysis and its quantity, a reference may be made to the very preamble of the Act. It was enacted because the Legislature found it expedient to consolidate the laws relating to narcotic drugs and for also to regulate the treatment and rehabilitation of narcotic addicts.
' Though a Full Bench of this Court while dealing with the powers of Police Officer empowered to arrest, seize or search under this Act, while deliberating on the issue came to the finding that a person below the rank of S.-I. Would not be competent to make any search or seizure or arrest unless empowered under section 21 of the Act. Nasrullah v. State PLD 2001 Pesh. 152, with advantage it may be referred that in the Full Bench judgment there was no discussion made on the subject if provisions of section 22 are independent of section 21 of the Act.
' The perusal of section 27 of the Act would indicate that sections 20 and 21 of the Act would not be applicable to arrest, search or seizure made under section 22 of the Act, hence it is inferred that provisions of section 22 are independent.
10. Under section 59 of the Criminal Procedure Code even a private person can arrest an accused who commits a non-bailable and cognizable offence in his sight or is proclaimed offender. By virtue of section 47 of the Act provisions of Criminal Procedure Code, 1898 are made applicable to the proceedings under the Act except as otherwise provided by the Act. If this be so and when there is no express exclusion of section 59 and when an offence under sections 6, 7, 8 and 9 of the Act are cognizable, arrest made by a person below the rank of Sub-Inspector cannot be held violative of section 20 of the Act.
' Otherwise too, even if the arrest, seizure and search are held to be violative of section 21 of the Act if made by a person below the rank of Sub-Inspector but the requirement of section 154, Cr.P.C., whereunder F.I.Rs, are recorded, does not preclude any person from reporting the offence to the Incharge of the police station if it relates to commission of a cognizable offence, meaning thereby that any person can be a competent complainant regarding an offence under the Act, of course subject to investigation by Authority/Officer competent to investigate. At bail stage the legality of search, seizure or arrest shall not be considered because bail applications are entertained on the basis of material available on the record. Any illegality in the procedure can of course be challenged through other legal courses like filing a quashment petition or a habeas corpus petition or Constitutional petition.
11. Regarding sending of negligible quantity for chemical analysis, reference may be made to section 36 of the Act which requires that sample of the narcotic drugs shall be tested by Government Analyist. Where the Statute has itself used the word "sample" it is but obvious that sample is always part of the total and it does not require that the whole quantity should be tested.
At times arguments are advanced that report of the Chemical Examiner is not available on the date when bail application is argued. If such argument is allowed to prevail then in all narcotic cases from the date of seizure of the articles until report is obtained in the interim period every person accused of narcotic in every case can claim bail which would not be in consonance with the provisions of the Act. This matter came up before a Division Bench of the Lahore High Court in Nazar Hussain v. State 2002 PCr.LJ 440 and -it was ruled that even non-availability of Chemical Examiner's Report in view of section 29 of the Act which provides a presumption to be raised against the accused regarding the allegation levelled against him to be true.
' Otherwise too, if the whole quantity is sent to the Chemical Laboratory for test nothing would be left with the prosecution to produce at the trial as case property because while carrying the test the case property would stand consumed. It is added that whenever narcotics are recovered, from the total quantity a sample is separated by the Investigating officer who seals the samples into a parcel and also seals the case property in the presence of marginal witnesses. Both i,e, sample and the remaining case property are then marked with F.I.R. Number, the date and the police station with stamps of seizure officer. This carrying of F.I.R. Number etc. On two different parcels, one is retained as case property and the other sent as sample for test, would remain wedded and there remains a nexus between the two because of the F.I.R. Number so given.
12. It is argued that where offence committed if falls under two different definitions of two different Statutes, the one which prescribes lesser sentence should be applied while entertaining bail application, would not hold the field in view of provisions of section 74 of the Act which prescribes that where an offence is punishable under the Act and is also an offence under any other law for the time being enforced nothing in that law shall prevent the offender from being punished under the Act. Otherwise too, there is no statutory provisions where under a Court is bound to keep in view a paramateria Statute on the subject providing lesser sentence. The proposition that Court shall not keep in view the maximum punishment prescribed for the offence but should consider the sentence which is likely to be awarded, is also not a legal argument because on principles if one looks back to section 497, Cr.P.C. Which contained prohibitory clause therein and is with regard to punishment prescribed and not punishment likely to be granted.
13. As earlier held that provisions of section 497, Cr.P.C. Are inapplicable and bail applications under the Act are to be heard, entertained and decided on the parameter of provisions as given in section K 51 of the Act, therefore, the ground that an accused is under age or the applicant is a female would not be relevant for the purpose of bail under the Act.
14. One shall keep in mind that the enactment of the Act was necessitated for the reasons and object to consolidate the narcotic laws and one cannot shut ones eyes to the prevailing business of the drug pushers who for their monetary gains have caused loss to the society in general, the persons involved in immoral business of drugs are to be discouraged and not that Court shall come to their rescue by entertaining their bail applications on academic questions or by giving them the benefit of bail by interpreting Statutes favourable to them.
15. In view of the fact that from all the petitioners huge quantity of narcotic drugs were recovered and there is a prima facie case against them and their cases are not covered under section 51(2) of the Act, their applications for grant of bail are dismissed.