Syed Khan alias Malangi vs The State
This criminal petition seeks post-arrest bail for the petitioner, Syed Khan alias Malangi, who was charged under section 11(b) of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, following the recovery of 527 grams of 'ice' from his possession. The core legal question was whether the delay in dispatching the narcotic sample to the Forensic Science Laboratory beyond the 72-hour period prescribed by Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, entitled the petitioner to the grant of bail. The Court held that the petitioner was not entitled to bail, as the record prima facie connected him to the offence and the punishment fell within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. Relying on the Supreme Court's precedent in 'Gull Din v. The State', the Court laid down the principle that Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, is directory in nature, and its non-compliance does not constitute sufficient grounds for the grant of bail.
- Is the requirement to dispatch narcotic samples to the Forensic Science Laboratory within 72 hours under Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, mandatory or directory?
- Does the non-compliance with the 72-hour sample dispatch rule automatically entitle an accused to bail in narcotic cases?
- Does the recovery of a large quantity of narcotics, supported by a positive chemical analysis report, satisfy the prima facie connection required to deny bail under the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Section 11(b), Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019
- Rule 4(2), Control of Narcotic Substances (Government Analysts) Rules, 2001
- Article 189, Constitution of Pakistan 1973
- Section 497, Code of Criminal Procedure 1898
DR. KHURSHID IQBAL, J. The petitioner, Syed Khan alias Malangi, seeks release on bail in case FIR No.974, dated 24.10.2023, registered under section 11(b) of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, at Police Station Cantt, District Bannu.
2. On 24.10.2023, a police patrol led by Rauf Khan, PASI, received information that a notorious drug peddler, known as Syed Khan alias Malangi, was awaiting clients for the sale of ice on the metalled road of Amandi Amir Jan, near River Kurram. Acting on the information, the police patrol immediately rushed to the spot and spotted a person matching the informant's description. On seeing the police patrol, the person attempted to flee, but was apprehended. His physical search revealed a polythene bag containing 527 grams of ice in his side pocket. The ice was seized through a recovery memo, dated 24.10.2023. The person disclosed his identity as Syed Khan alias Malangi, son of Mira Khan from Bazid Tughal Khel, District Bannu. He was arrested. A murasila of the incident report was drafted and forwarded to the police station for case registration. Hence, the FIR.
3. Arguments heard. Record perused.
4. The record reveals that 527 grams of ice was recovered from the direct possession of the petitioner. It is a huge quantity. A sample of one gram was extracted from it and sent to the FSL for chemical analysis. The FSL report was received in positive, confirming the nature of the substance as ice. It is imperative to acknowledge that the escalating menace of ice, both in its sale and usage, is a pressing concern that intensifies day by day. Viewing this issue from a broader perspective, the widespread prevalence of ice as a narcotic substance poses a grave threat to the society, carrying the potential to precipitate its eventual collapse and imperil the future of the youth. If left unchecked, the pervasive consequences of this menace can undermine the stability, progress, and prosperity of the nation as a whole. The Legislature, recognizing the urgency of the situation, has proactively brought about legislative strictness within the province through the enactment of the 2019 CNS Act. The legislative framework on the subject underscores the gravity of the menace. It is, therefore, high time to combat this issue with a robust judicial response in confluence with the legislative efforts.
5. Though, the learned counsel has strongly advocated for bail given that the sample parcel was dispatched to the FSL beyond 72 hours. According to him, it is the violation of Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001. To support his contention, a precedent of this Court in Cr. Misc. B.A. No. 04-B/2022, dated 10.01.2022, was cited. However, it has been superseded by the Supreme Court's judgment in Gull Din v. The State through P.G. Punjab and another (2023 SCMR 306), establishing that Rule-4(2) being directory in nature, its non- compliance would not be a sufficient ground for bail. The latest Supreme Court judgment, binding on this Court by virtue of Article 189 of the Constitution, mandates adherence, and in adherence thereto, the contention is repelled.
6. A tentative reading of the record prima facie connects the petitioner to the offence alleged against him. It entails punishment which is covered by the prohibition contemplated in section 497, Cr.P.C. Given these, facts and circumstances, the petitioner does not merit bail. Consequently, the application is refused.