MUHAMMAD NADEEM vs The STATE through Incharge FIA PS No.14 Gilgit
The petitioner sought post-arrest bail in case FIR No. 10 of 2017 registered under sections 23 and 27 of the Drugs Act, 1976, relating to the alleged recovery of unregistered drugs from a hotel room. The core legal question was whether the alleged offenses fall within the prohibitory clause of section 497 of the Code of Criminal Procedure, 1898, considering the statutory punishment and the specific acts attributed to the petitioner. The Gilgit Baltistan Chief Court held that mere possession of a spurious drug is not made punishable under section 27 of the Drugs Act, 1976, and that the offenses charged do not fall within the prohibitory clause of section 497(1) of the Code of Criminal Procedure, 1898. The petition was consequently allowed and the petitioner admitted to bail, establishing that minimum sentences must be considered for prohibitory clause applicability and that specific statutory elements like export, import, manufacturing, or selling are required under the invoked provisions.
- Whether the minimum sentence of an offence must be kept in view to determine if it falls within the prohibitory clauses of section 497 of the Code of Criminal Procedure, 1898?
- Does mere possession of a spurious drug constitute an offense punishable under section 27 of the Drugs Act, 1976?
- Do offenses under section 23 of the Drugs Act, 1976 fall within the prohibitory realm of section 497(1) of the Code of Criminal Procedure, 1898 in cases of mere possession?
- Section 23, Drugs Act 1976
- Section 27, Drugs Act 1976
- Section 497, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
ORDER
MALIK HAQ NAWAZ, J.---The petitioner has sought post-arrest bail in the case FIR No.10 of 2017 dated 19.04.2017 registered under sections 23 and 27 of the Drugs Act, 1976.
2. The precise allegations contained in the FIR, recorded on the complaint of Mr. Ubaidullah Khan Drug Inspector Gilgit are that on the fateful day the complaint pursuant to a tip-off conducted a raid on "Ziaqa" hotel situated at Punial Road near Imamia Mosque Gilgit and arrested the petitioner and recovered a huge quantity of unregistered drugs from Room No. 105 of the Hotel. After recovery of the unregistered drug (detail is Mentioned in FIR) the complainant lodged the instant FIR against the petitioner. After completion of investigations the petitioner was committed to judicial lock up.
3. Heard both the parties and perused the record.
4. The petitioner has been charged for violation of section 23 of Drug Act 1976, which carries the punishment, which shall not be less than 5 years with a fine of Rs. 500000/- (Five lac) however, the punishment should not be more than 10 years with the fine of Rs.500000/-(Five Lac).
5. I am of the view that while deciding a bail application, the minimum sentence of an offence has to be kept in view in order to determine whether the offence falls within the prohibitory clauses of section 497, Cr.P.C. or not.
6. As discussed above the petitioner has been booked for violation of section 23 of Drug Act, 1976.
Bare reading of section 23 shows that it has been restricted to the extent of export, import or manufacturing for sale or selling any spurious drug. Mere possession of a spurious drug has not been made punishable under section 27 of Drugs Act, 1976. The offences, the petitioner is charged with, does not fall within the realm of provisions as contained in subsection (1) of section 497, Cr.P.C., therefore, I am of the opinion that a case for grant of bail has been made out.
7. Let me mention here that 'I' am deliberately withholding comments regarding applicability of certain provisions of. Drugs Act, 1976 to avoid prejudice to either parry.
8. For what has been discussed, this petition is allowed and the petitioner is admitted to bail subject to furnishing of bail bonds of Rs.10,00,000/- (Ten lac) with two local and reliable sureties each in the like amount to the satisfaction of learned trial Court at Gilgit.