GHULAM HUSSAIN vs STATE and another
This criminal miscellaneous application arises out of a case where the petitioner, Ghulam Hussain, was apprehended while driving a vehicle allegedly loaded with twenty-nine bags of bhang weighing around 510 kilograms. The core legal question concerns whether the recovery of bhang falls under the Control of Narcotic Substances Act 1997 or the Prohibition (Enforcement of Hadd) Order 1979, and whether the petitioner is entitled to post-arrest bail considering the circumstances of the recovery and statutory definitions. The court held that since the contents of the F.I.R. do not explicitly reveal that the recovered material consisted of flowering or fruit tops wherefrom resin had not been extracted, the matter requires trial determination and may attract the Prohibition Order rather than the Control of Narcotic Substances Act. Furthermore, as the recovery was from a vehicle rather than the petitioner's direct physical person, conscious knowledge remains a question for trial, and keeping the accused in continuous confinement served no useful purpose. The court laid down the principle that the legal categorization of bhang depends on whether specific parts like flowering or fruiting tops are involved, affecting statutory applicability.
- Whether the recovery of bhang falls under the Control of Narcotic Substances Act 1997 or the Prohibition (Enforcement of Hadd) Order 1979?
- Does the definition of cannabis under the Control of Narcotic Substances Act 1997 include general bhang without specifying flowering or fruiting tops?
- Is an accused entitled to post-arrest bail when the recovery is made from a vehicle and conscious knowledge of the contents is yet to be determined at trial?
- Section 2(s), Control of Narcotic Substances Act 1997
- Section 2(d), Control of Narcotic Substances Act 1997
- Section 9(a), Control of Narcotic Substances Act 1997
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 9(c), Control of Narcotic Substances Act 1997
- Article 4, Prohibition (Enforcement of Hadd) Order 1979
ORDER
1. ' The complainant, Muhammad Zikria ASI and his co-police officials intercepted Della Shahzore bearing Registration No, 6280- MLF, driven by Ghulam Hussain (petitioner) with Ali Raza as helper, on a spy information that it was loaded with some contraband material; on checking, twenty nine bhang-filled plastic-bags (gattoos) were recovered from it, which weighed around 510 kilograms when put on the scale; the petitioner uld the complainant-ASI that the material loaded in truck belonged to Ashfaq Ahmed.
2. After hearing learned counsel for the parties and perusing the record, it is observed that word 'bha' ng', according to various dictionaries of English language is known as 'hemp'. Whether bhang is a narcotic substance/drug is a question, the answer to which may be found from Section 2(s) of the Control of Narcotic Substances Act 1997, where narcotic drug has been defined to be coca leaf, cannabis heroin, opium, poppy straw and all manufactured drugs. The term cannabis (hemp) as defined by Section 2(d) of the Act (ibid) means:--
(i) cannabis resin (charas) that is, the separated resin, whether crude or purified obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(ii) the flowering or fruiting tops of the cannabis plant (excluding the seed and leaves when not accompanied by the tops) from which the resin has not been extracted by whatever name they may be designated or known; and
(iii) any mixture with or without neutral materials of any of the above forms of cannabis or any drink prepared therefrom.
2. The definition, as given in Section 2(d)(ii) above thus indicates, if bhang (hemp) is referred to without specifying particular parts thereof, in mentioned terms, the offence would fall within the purview of the Prohibition (Enforcement of Hadd) Order IV of 1979. The situation, however, would change if specific parts, flowering or fruit tops of the cannabis-plant, from which resin has not been extracted, are alleged to have been recovered from the accused, his case shall be covered by the Control of Narcotic Substances Act 1997 and recovery of bhang,/hemp would fall within the mischief of Section 9(a) or 9(b) or 9(c) of the Act (ibid), as the situation may be. In the instant case, the recovery of bhang has not taken place from physical possession of the accused, rather it was made from the Dalla, being driven by him. The probability cannot be ruled out that the said bags may not belong to him or he may not be within conscious knowledge of the contents thereof, which factor may be determined by the learned trial Court after recording evidence of the parties at trial.
3. The contents of the F.I.R. Do not reveal- that the recovered stuff consisted of flowering or fruit tops wherefrom resin had not been extracted, hence, its recovery may not fall within the mischief of Section 2(d)(ii) of the Act (ibid) and it may attract provisions of Article 4 of the Prohibition Order
(ibid) instead. The controversy in this regard may, however; be taken care of by the trial Court during trial. The petitioner is behind the bars since 11.6.2014 and he is no more required for the purpose of any recovery etc. Keeping him continuously confined would serve no useful purpose.
4. Therefore, this application is allowed and the petitioner is granted post-arrest bail subject to furnishing bail bonds in the sum of Rs,5,00,000/- (five lacs) with two sureties each in the like amount to the satisfaction of the 'learned trial Court.
5. (A.S.) .