' ASIF SAEED KHAN KHOSA, J.--- The industry and hard work of the learned counsel for the petitioner and his zeal to put in his best for his client's bail have turned this otherwise simple matter of bail into an anthology of the relevant law and something like a dissertation or a monograph on the subject of bail in cases under section 9 of the Control of Narcotic Substances Act, 1997. The valiant effort made by the learned counsel for the petitioner has earned our admiration.
2. The relevant facts of this case are that during the investigation of a criminal case Irshad Ahmad, Assistant Sub-Inspector of Police apprehended Nazar Hussain petitioner at a public place at about 9-30 p.m. On 6-11-2001 and upon the petitioner's personal search Charas weighing 200 grams was recovered whereafter the petitioner was arrested. A sample of the recovered substance weighing 10 grams was separated and sealed for the purpose of getting the same chemically examined and the remaining quantity was sealed in another parcel. Subsequently, F.I.R. No,372 was registered at Police Station City, Layyah in that regard at 9-45 p:m. During the same night at the instance of Irshad Ahmad, A.S.-I. For an offence under section 9(b) of the Control of Narcotic Substances Act, 1997 with an allegation that the petitioner was keeping the said contraband substance in his possession for his own use as well as for the purpose of sale to others. After a few days of his arrest the petitioner applied for his post-arrest ,bail but his application in that regard was dismissed by the learned Additional Sessions Judge, Layyah vide order, dated 12-12-2001. Hence, the present petition before the Court.
3. In support of this petition it has been argued by the learned counsel for the petitioner that despite the petitioner having been arrested at a public place no witness from the public was associated with the recovery allegedly effected from the petitioner and, thus, the mandatory requirements of section 103, Cr.P.C. Were flagrantly violated in this case. It has also been argued that Irshad Ahmad, A.S.-I. Had conducted the alleged search of the petitioner, had himself arrested the petitioner, had then become the complainant of this criminal case and had subsequently also adorned the mantle of an Investigating Officer of this case. According to the learned counsel for the petitioner wearing of all these hats by Irshad Ahmad, A.S-I. At the same time was neither proper nor just and fair. It has also forcefully been contended that by virtue of the provisions of section 21 of the Control of Narcotic Substances Act, 1997 Irshad Ahmad, A.S.-I., being an officer below the rank of a Sub-Inspector of Police, was not even competent or authorized to conduct a search of the petitioner's body or' clothes or to effect the petitioner's arrest. According to the learned counsel for the petitioner a criminal case registered on the basis of an illegal arrest or ,search is liable to be treated as nullity and,the investigation conducted in such a case stands vitiated. Another argutnent advanced by the learned counsel for the petitioner has been that the allegations levelled against the petitioner attracted the provisions of section 9(b) of the Control of Narcotic Substances Act, 1997 as well as the provisions of Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and in such a case of two penal provisions attracted to the same allegations against an accused person that penal provision is to be applied which carries a lesser punishment or attracts lesser rigours of the law. It has further been argued that only a small quantity out of the substance allegedly recovered from the petitioner's possession had been sent by the police for chemical analysis and such a small sample was neither a representative sample of the entire substance nor a conviction of the petitioner can be recorded for the entire substance if the entire substance is not found by a Chemical Examiner to be contraband narcotic. The learned counsel has further maintained that so far no report has been received from the Chemical Examiner regarding the sample of the substance allegedly recovered from the petitioner and, thus, at this stage there is nothing on the record even to seriously allege that the substance allegedly recovered from the petitioner's possession was contraband narcotic. It has lastly been canvassed by the learned counsel for the petitioner that the offence under section 9(b) of the Control of Narcotk Substances Act, 1997 does not attract the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. And, therefore, the petitioner deserves to be admitted to bail as in cases not attracting the said prohibitory clause grant of bail is a rule and its refusal merely an exception. A number of precedent cases have been cited and referred to by the learned counsef for the petitioner in support of his various submissions and it has been prayed that in the peculiar circumstances of this case the petitioner may be admitted to bail till the conclusion of his trial. As against that the learned counsel for the State has opposed this petition tooth and nail and has taken up cudgels with each and every argument advanced by the learned counsel for the petitioner.
4. After hearing the arguments of the learned counsel for the parties and going through the record of this case with their assistance we have noticed that the petitioner was allegedly apprehended red-handed by a police party while in possession of Charas weighing 200 grams. The learned counsel for the petitioner has remained unable to show any background of bitterness or ill-will between the petitioner and the local police so as to prompt the latter to falsely implicate the petitioner in a case of this nature. It has already been held by the Honourable Supreme Court of Pakistan in a number of cases that in cases of recovery of contraband narcotics Police Officials are as good and competent witnesses as public witnesses unless some background of animosity between such an accused person and the police is established. Reliance placed by the learned counsel for the petitioner on the cases of Rao Muhammad Jalees alias Jaloo v. The State 1990 PCr.LJ 26, Siddique alias Saddi v. The State 1995 PCr.LJ 1178, Muhammad Siddique v. The State 1996 PCr.LJ 1603 and Zulfiqar Ali Shah v. The State 1995 PCr.LJ 1945 to contend that in case of violation of the requirements of section 103, Cr.P.C. In respect of recovery of contraband narcotics such an accused person may be admitted to bail has been found by us to be inapt inasmuch as the provisions of section 25 of the Control of Narcotic Substances Act, 1997 clearly exclude the application of section 103, Cr.P.C. To the cases under I the Control of Narcotic Substances Act, 1997.
This aspect of the matter was discussed and amply clarified in the cases of Fida Jan v. The State 2001 SCMR 36 and Shahid Baloch v. The State 1998 PCr.LJ 1628. Thus; basing an argument by the learned counsel for the petitioner upon a legal provision which is not even applicable to the case in hand has not carried the said argument any far.
5. The argument of the learned counsel for the petitioner regarding various hats simultaneously worn by Irshad Ahmad, A.S.-I. Has failed to impress us. In a case of this nature the Police Officer searching a suspect immediately arrest him upon recovery of contraband substance, separates a sample of such substance for onward transmission to the office of the Chemical Examiner, seals the packets containing the sample and the remaining recovered substances, chalks out an F.I.R.
And records the statements of the recovery witnesses at the spot. For all practical purposes the search, recovery, arrest and most of the remaining steps in the investigation are all conducted and taken at the spot in such cases by the same Police Officer and the investigation is practically over and substantially completed at the spot and before such an officer returns to his police station. It should, therefore, not surprise or shock anybody to know or realize that in such cases more often than not it is the same officer who has to wear the hats of the raiding officer, the complainant and the Investigating Officer. This practical aspect of the matter was unfortunately not noticed in the case of Akhtar Hussain Shah v. State 1999 PCr.LJ 225. Wearing of all these hats by Irshad Ahmad, A.S.-I. In this case has, thus, not been found by us to be either illegal or improper as the same was not only natural but also probably the only practical course available in the circumstances of the case. Even otherwise this aspect of the matter can hardly be treated as a factor per se entitling an accused person to bail in a criminal case of this nature.
6. The argument of the learned counsel for the petitioner based upon the provisions of section 21 of the Control of Narcotic Substances Act, 1997 has engaged our serious attention but we have, however, not been able to subscribe to the point of view .Canvassed by him in that regard. It was held in the cases of Ghulam Ali v. The State 1996 PCr.LJ 608, Roze Muhammad Khan v. The State 1996 PCr.LJ 1059, Khalid Nawaz v. The State 1998 PCr.LJ 2008 and Nasrullah v. The State PLD 2001 Pesh. 152 'that a search conducted and arrest made by a Police Officer below the prescribed tank militate against the letter as well as spirit of the relevant provisions of the law and, therefore, the same are legally inconsequential or non est for the purposes of the Control of Narcotic Substances Act, 1997. We have, however, looked at this aspect from various other angles and perspectives. In this context we have noticed that an offence under section 9(b) of the Control of Narcotic Substances Act, 1997 is cognizable and non-bailable and, therefore, by virtue of the provisions of section 59, Cr.P.C. Even an ordinary citizen, whether wearing any kind of uniform or not or holding any rank or office or not, could have arrested the petitioner upon finding contraband narcotics in his possession. Under section 154, Cr.P.C. Any person could have reported the petitioner's alleged crime at a police station and could have become the complainant irrespective of the fact whether he held any particular office or rank or not. We are also cognizant of the legal position that the allegations against the petitioner also attracted the provisions of Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and the provisions of the said order did not place any restriction or embargo upon Irshad Ahmad, A.S.-I. Against going ahead and searching and arresting the petitioner and in such a case the rank of that officer in the police hierarchy would have been totally irrelevant to the legal validity of such a search and arrest. We have, therefore, found it difficult to hold that the personality of the relevant Police Officer was divisible for the purposes of the provisions of sections 59 and 154, Cr.P.C. Articles 3 and 4 of the Prohibition (Enforcement of Hadd)
Order, 1979 and section 9(b) of the Control of Narcotic Substances Act, 1997 and that such a fictional divisibility depended merely upon the rank of such an officer in the police hierarchy.
Recognizing and giving effect to such a distinction or divisibility of the same person/officer for the purposes of different legal provisions has been found by us to he making a fetish of technicalities and too artificial and impracticable to be accepted with any degree of rationality. With great respect for the views expressed in the abovementioned precedent cases we would certainly not like to be a party to stretching of this legal argument to such limits of flippancy. Be that as it may, even if Irshad Ahmad, A.S.-I. Was not competent or authorized to search and arrest the petitioner or conduct the investigation of this case still the actions taken by him and the investigation conducted by him may not stand vitiated as according to subsection (2) of section 156, Cr.P.C. No proceeding of a Police Officer can be called in question on the ground that the case was one which such officer was not empowered to investigate. The Control of Narcotic Substances Act, 1997 does not provide a penalty for non-observance of the provisions of section 21 thereof transforming an otherwise directory provision into a mandatory one and, thus, such a defect in the search, arrest and investigation may be termed as only an irregularity and not an illegality vitiating the entire process. We may observe with respect that in somewhat similar circumstances more or less similar views were expressed by the Honourable Supreme Court of Pakistan in the cases of The State v. Muhammad Hussain PLD 1968 SC 265, Noorul Islam v. The State 1986 SCMR 1836, State througn Advocate-General Sindh v. Bashir and others PLD 1997 SC 408, Fida Jan v. The State 2001 SCMR 36, The State v. Sohail Ahmad and others PLD 1990 FSC 29, State through Director-General, Pakistan Coast Guards, Turbat v. Sabro and another 1992 PCr.LJ 1795 and Zubair alias Nana v. The State 1992 PCr.LJ 2127 also proceed on the same legal exposition. Thus, we are of the considered view that an irregularity of this nature stemming, from a violation of a directory provision of the relevant law cannot be held to be sufficient to wash away the alleged criminality of the petitioner in this case.
7. The learned counsel for the petitioner is quite right in pointing out that in the cases of Ghani-ur- Rehman v. The State 1996 PCr.LJ 347, Muhammad Afzal v. The State 1998 PCr.LJ 955 and Naveed Ahmad Khan v. The State 1999 PCr.LJ 63 it had been held that if the allegation levelled against an accused person attracts the provisions of section 9(b) of the Control of Narcotic Substances Act, 1997 as well as the provisions of Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 then in such a case of two penal provisions attracted to the same allegation against an accused person that penal provision is to be applied which carries a lesser punishment or attracts lesser rigours of the law, i,e, Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. However, we have noticed in this context that in all the abovementioned cases the provisions of section 76 of the Control of Narcotic Substances Act, 1997 had not been brought to the notice of the Honourable Judges deciding those cases. Section 76 of the said Act of 1997 provides for giving an overriding effect to the provisions of the Control of Narcotic Substances Act, 1997 over anything contained in any other law for the time being in force. The provisions of section 74 of the said Act may also be advantageously referred to in this context. The overriding effect of section 76 of the Act of 1997 was clearly noticed and expressly referred to in the case of Khalil-ur-Rehman v. The State 1998 PCr.LJ 1625 for brushing aside an argument that the case of the accused person in that case may be considered to be one under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and not to be that under section 9 of the Control of Narcotic Substances Act, 1997 for the purposes of the said accused persons' bail. We respectfully subscribe to the view expressed in this regard in this precedent case.
8. The argument of the learned counsel for the petitioner that only a small quantity out of the substance allegedly recovered from the petitioner had been sent by the police for chemical analysis and it is only that quantity which can be considered against the petitioner and not the remaining substance which was never sent for chemical analysis may not detain us for long. This argument overlooks the fact the provisions of sections 35 and 36 of the Control of Narcotic Substances Act, 1997 do not specify any particular quantity of the recovered substance to be sent as a sample for chemical analysis. It was held in the case of Hazrat Ali Khan v. The State 1989 MLD 3246 that bail cannot be claimed on the ground that only a small quantity out of the recovered substance was sent as a sample for chemical analysis and this was so because the law had not fixed any particular quantity to be sent for the purpose. Even otherwise H section 29 of the Control of Narcotic Substances Act, 1997 requires a presumption to be raised in such a case regarding the allegation levelled against an accused person to be true in its entirety and it is for the accused person to rebut such an allegation. The said provision is very much a part of the relevant statute and this Court has no other option but to give effect to the same for as long as the same remains on the statute book. The said legal presumption had in fact been referred to and relied upon by the Honourable Supreme Court of Pakistan in the case of Fida Jan v. The State 2001 SCMR 36. In this view of the matter the argument advanced by the learned counsel for the petitioner based upon the quantity of the recovered substance sent as a sample to the Chemical Examiner hardly remains relevant.
9. Claiming bail for the petitioner on account of present non-availability of any report of the Chemical Examiner regarding the substance allegedly recovered from the petitioner's possession is indeed an intriguing demand. It is but normal that during the period between an alleged recovery of a contraband substance and receipt of a report of the Chemical Examiner regarding a sample of such recovered substance there has to be a gap of time extending to days or even months. During such a period there is no expert opinion available to establish that the substance recovered from the accused person is actually contraband narcotic. If the contention of the learned counsel for the petitioner in this respect be accepted then in every such case all accused persons would lay a claim on bail as of right between the period of recovery and receipt of a report of the Chemical Examiner. Such a consequence would be absurd as well as disastrous and that surely could not be the intention of the Legislature if we keep the provisions of section 51 of the Control of Narcotic Substances Act, 1997 in mind. However, such an absurd and disastrous consequence can be averted with reference to the abovementioned provisions of section 29 of the Control of Narcotic Substances Act, 1997 according to which an adverse presumption is to be drawn against an accused person in this regard. Without invoking such a legal presumption against an accused person at such a stage the very purpose or raison D'etre of enacting the said law may be frustrated if an accused person can walk out on bail on day one of the recovery and arrest. It, however, goes without saying that if subsequently the report received from the Chemical Examiner regarding the sample turns out to be in the negative then the presumption envisaged by section 29 shall stand rebutted and a prayer of such an accused person for his bail may in such an eventuality receive a significant boost. Admittedly such an occasion has not arisen in the present case so far.
10. It may be true that an offence under section 9(b) of the Control of Narcotic Substances Act, 1997 carries a sentence of less than ten years' imprisonment but at the same time it is equally true that the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. Is hardly relevant to a case under section 9 of the Control of Narcotic Substances Act, 1997 as the said statute contains its own prohibitory clause in its section 51 which provides as follows:-- "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 offences 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."
' It is, thus, quite clear that the provisions of sections 496 and 497, Cr.P.C. Are not applicable to a case under the Control of Narcotic Substances Act, 1997 and, therefore, any reference to the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. In such a case is legally inapt.
Even otherwise, as already noticed above, by virtue of the provisions of section 76 of the Control of Narcotic Substances Act, 1997 the provisions of the said Act are to have an overriding effect over all other statutes in existence for the time being. The provisions of section 51 of the said Act clearly place an embargo upon grant of bail in cases attracting section 9(c) of that Act and bail is ordinarily not to be granted in cases attracting section 9(a) or (b) of that Act unless special circumstances exist in a case. The same view was taken in the case of Mst. Nasira Bibi v. The State PLD 1998 Lah.
146. However, in the cases of Nazan Shah v. The State 1998 PCr.LJ 1540 and Khalil Ahmed v. State PLJ 2001 Cr.C. (Lahore) 1312 a contrary view was expressed but, unfortunately, the provisions of section 51 of the Act of 1997 and the effect of section 76 of the said Act had not been brought to the notice of the Honourable Judges deciding the said cases. The learned counsel for the petitioner has failed to point out any special circumstance in the present case so as to drag the case of the petitioner out of the prohibitory clause contained in subsection (2) of section 51 of the Control of Narcotic Substances Act, 1997.
11. We are conscious that some of the views expressed by us above and some of the interpretations advanced by us vis-a-vis different provisions of the Control of Narcotic Substances Act, 1997 may appear to some to be somewhat harsh or stringent but we maintain that the same are in consonance with the spirit of the said law. The said law is not an ordinary law as the menace that it purports to curb is not commonplace and the criminals who indulge in it are not of the normal type. The mischief sought to be suppressed by this law is not just a crime against a human being but a crime against the humanity and, therefore, a response to the same has to be aggressive and punitive rather than benign and curative. It may be true that an individual subjected to the rigours of this law may sometimes suffer disproportionately but the greater good of the society emerging from stringent application of this law may make this approach worth its while.
12. For what has been discussed above prima facie, reasonable grounds do exist in this case to believe in the petitioner's involvement in the offence alleged against him, and therefore, this petition is hereby dismissed.