CHACK MATAR vs The STATE
This criminal petition arises from the refusal of post-arrest bail to the petitioner by the Special Judge ANF Gilgit, after he was booked under Section 9(c) of the Control of Narcotic Substances Act, 1997 for the alleged possession of 20 kilograms of charas. The core legal question before the Gilgit Baltistan Chief Court was whether the local police lacked the competence to register an FIR and conduct proceedings for narcotics offenses, thereby rendering the arrest and investigation a nullity, and whether the petitioner was entitled to post-arrest bail despite the prohibitory clause. The Court held that while the Anti-Narcotics Force (ANF) is the specialized agency created under the statute for investigation, local police can register a case of narcotics recovery provided the accused and the recovered material are handed over to the ANF for further proceedings. The Court found the petitioner prima facie connected to a massive recovery of contraband and dismissed the bail petition. The key principle laid down is that procedural technicalities regarding the investigating agency should not frustrate the intent of special narcotics legislation, and the local police's initial registration is curable upon transferring the matter to the ANF.
- Whether local police are competent to register an FIR for the recovery of narcotics under the Control of Narcotic Substances Act, 1997?
- Does the statutory bar under Section 51 of the Control of Narcotic Substances Act, 1997 absolutely preclude the grant of bail in cases involving a prohibitory quantity of narcotics?
- Whether the failure to associate public witnesses under Section 103 of the Code of Criminal Procedure, 1898 vitiates the entire proceedings conducted by the local police in narcotics cases?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 25, Control of Narcotic Substances Act 1997
- Section 50, Control of Narcotic Substances Act 1997
- Section 51, Control of Narcotic Substances Act 1997
- Section 103, Code of Criminal Procedure 1898
- Section 155(2), Code of Criminal Procedure 1898
- Section 59, Code of Criminal Procedure 1898
ORDER
MALIK HAQ NAWAZ, J.---The precise facts of the case are that the petitioner was booked by the local police under section 9(c), C.N.S.A., 1997 for keeping 20 kgs. of charas in his possession, which was recovered from him and FIR No,69/2016 was registered at Police Station Basin Gilgit.
2. The petitioner applied for bail in the Court of Special Judge ANF Gilgit which was refused to him vide order/judgment dated 17-01-2017 and being aggrieved of the said order, he has approached this Court for the concession of bail.
3. The learned counsel for the petitioner mainly attacked on the very registration of FIR, which has been lodged by the local police under Special Law. The learned counsel contends that the local police was not competent to register FIR against the petitioner as after promulgation CNSA-1997, only ANF was competent to register the FIR regarding recovery of narcotics. The learned counsel further contended that the provisions of section 103, Cr.P.C, have been violated and there is no explanation available on record for such a flagrant violation. The provisions of section 25 of CNSA- 1997 are only available to ANF, which in special circumstances empowers the ANF to exclude the association of public witnesses if there is any chance that the narcotic will be removed immediately and there is no time space available with ANF to associate public witnesses, but such an exemption is not available to the local police. Per learned counsel the entire proceedings carried out by the police are nullity in the eyes of law .and are to be set aside and the petitioner is entitled to be released on bail pending trial to meet the ends of justice. The learned counsel relied on 1999 SCMR 1271, 2002 PCr.LJ 1086, PL.! 2006 Cr.C. (Peshawar) 188(sic.), 2011 PCr.LJ 1334, PLD 2013 Peshawar 32 in support of his arguments.
4. On the other hand the learned Dy.A.G, vehemently opposed the bail petition mainly on the grounds that a huge quantity of charas weighing 20 kg has been recovered from the possession of the petitioner, which cannot be planted falsely. The learned Dy.A.G, stated further that the offence entails the punishment of death and not less than 14 years if the quantity of contraband material exceeds 10 kg.
5. We have heard the learned counsel of both the parties and perused the record of the case. The learned counsel for the petitioner was confronted with section 155(2), Cr.P.C., to which the learned counsel kept his lips tight. Section 155(2), Cr.P.C., is reproduced for the purpose of convenience: 155(2) Investigation into non-cognizable cases. No police officer shall investigate a non- cognizable case without the order of a Magistrate of first or second class having power to try such case [or send the same for trial to the Court of Session]
6. The learned counsel was also confronted to a judgment reported in PLD 1997 SC 408, wherein such controversies regarding lodging of FIR by un-authorized investigating agency have been set at rest for ever. There is a clear bar under section 51, CNSA-1997 to grant bail to the accused booked under CNSA-1997, but despite of bar, the Courts of the Country have been granting bail in appropriate cases of further inquiry. The intent and object of the Act inter alia is to control the production, processing and trafficking of narcotic. All the provisions of the Act are to be given full effect and the spirit of law should not be defeated on the basis of some technicalities. The contention of the learned counsel that the very arrest of the petitioner by the local police is illegal is devoid of any force as under section 59, Cr.P.C. even a private person can arrest an accused who commits a non-bailable and cognizable offence. Section 59, Cr.P.C. is reproduced as under:-
59. Arrest by private persons and procedure on such arrest.
(1)Any private person may arrest any person who in his view commits a non-bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over any person so arrested to a police-officer or in the absence of a police-officer, take such person or causes him to be taken in custody to the nearest police-station.
(2)If there is reason to believe that such person comes under the provisions of section 54, a police-officer shall re-arrest him.
(3)If there is reason to believe that he has committed a non-cognizable offence, and he refused on the demand of a police-officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 57. If there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
7. After promulgation of CNSA-1997, a special force (ANF) was established and the Act-XXV CNSA of 1997 was assented by the President of Pakistan and a separate mechanism was provided in the Act for search and investigation in Chapter (III) of the Act. Under section 50 of the Act, Special Prosecutors were appointed for prosecution of the cases in various Courts of law. No doubt, the local police can register a case in case of recovery of Narcotics but soon after registration of 'FIR, the accused and recovered material must be handed over to ANF authorities for further proceedings, otherwise the very object of Special Law will be made redundant. A copy of this judgment shall be sent to IGP Gilgit-Baltistan for further circulation to all the Senior Superintendents of Police of Gilgit-Baltistan for compliance.
9. The accused is prima facie linked with the commission of offence and bail petition of the petitioner/accused is dismissed being without any legal substance. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.