DA YONG WU Versus State

ORDER

CH. ABDUL AZIZ, J.--- Da Yong Wu (petitioner) seeks bail after arrest in case FIR No.226 dated 16.03.2021 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as "CNS Act 1997"), at Police Station, Defence-B, Lahore.

2. The case of prosecution as can be culled from the crime report is to the effect that on 16.03.2021 Rashid Shakoor SI along with other police officials was present in Defence Phase-2, Lahore; that upon receipt of spy information, he arrested a Chinese national whose name was later disclosed as Da Yong Wu and from his possession 5100 grams of Ketamine was recovered.

3. It is contended by learned counsel for the petitioner that the substance recovered by the police in no manner gives rise to an offence under section 9 of CNS Act, 1997, thus the registration of instant case was unwarranted; that the recovered substance does not come within the purview of prohibition contained in any provision of CNS Act, 1997 and that in these circumstances, the petitioner is entitled to the concession of bail.

4. The learned Special Prosecutor ANF, who appeared on Court's call, endorsed the arguments so advanced on behalf of petitioner and further added that the Ketamine is generally used for the medical purposes. Learned law officer further added that since on occasions the Ketamine is used as anti-depressive substance, thus initially was enlisted at Sr. No. 39-A of the schedule annexed with CNS Act, 1997 but later was excluded therefrom through notification dated 21.08.2020.

5. Arguments heard and record perused.

6. It emerges from the tentative perusal of record that petitioner stands arrested in the case after having been found in possession of 5100 grams of Ketamine. The acceptance of instant post arrest bail is mainly urged on the ground that the recovered substance is neither declared narcotic drug nor psychotropic or controlled substance thus no case under section 9 of CNS Act, 1997 could be registered. In order to better appreciate the point so raised by learned counsel for the petitioner, a notice was issued to Regional Director ANF for arranging his representation so as to render assistance on the controversy in question and in pursuance thereof learned Special Prosecutor ANF entered appearance in the Court.

7. I have duly pondered upon the point raised by learned counsel for the petitioner as the same is of paramount importance for the decision of instant bail application. The mischief of section 9 of CNS Act, 1997, attracts if a person is found to have contravened the provision of sections 6, 7 and 8 of the Act ibid. According to section 6 of CNS Act, 1997 production, manufacturing, extraction, possession, sale and purchase of any narcotic drug, psychotropic substance or controlled substance is prohibited. The eloquent examination of section 6 of CNS Act, 1997 unfolds that aforementioned prohibition is not absolute in nature rather is subject to certain exceptions and there is no bar to possess, produce, manufacture such substances for medical, scientific or industrial purposes but in accordance with some law for the time being in force. Likewise, I consider it expedient to reiterate here that for entailing consequences of section 9 of CNS Act, 1997 the recovered substance must be declared as narcotic drug, psychotropic or controlled substance. Under section 7(2) of CNS Act, 1997, Federal Government can make rules to permit and regulate the import, export and transshipment of narcotic drugs, psychotropic or controlled substance under a license or permit, needless to mention here for the purposes of medical, scientific or industrial purposes.

8. The terms Controlled Substance, Narcotic Drug and Psychotropic Substances are defined in sections 2(s), 2(k) and 2(za) respectively of CNS Act, 1997. According to section 2(k) Controlled substance means any substance which may be used for the production or manufacture of narcotic drug or psychotropic substance. Whereas, the term Narcotic Drug, according to section 2(s), stands for coca leaf, cannabis, heroin, opium, poppy straws and all manufactured drugs. So far as the psychotropic substance is concerned, as per section 2(za) it means the substances specified in the schedule annexed with CNS Act, 1997 and such substances as the Federal Government may by notification in the official gazette declared to be the psychotropic substance.

9. It alludes from section 2(za) of CNS Act, 1997 that a substance can be declared as psychotropic substance by notifying it in official gazette. Accordingly, the ketamine hydrochloride was declared as psychotropic substance hence was added at Sr. No.39-A of the schedule annexed with CNS Act, 1997 vide SRO No.446(I)/2020 dated 06.04.2020 issued by Government of Pakistan Ministry of Narcotics Control. The Ketamine is generally used for medical purposes and even on occasions as an anesthesia medicine thus probably was felt that it comes within the exceptions mentioned in section 6 of CNS Act, 1997. As a necessary consequence, the SRO No.446(I)/2020 was later withdrawn on 21.08.2020 vide Notification No.13-20/14 Police-I by publishing it in official gazette and as a necessary corollary, the entry at Sr.No.39(A) in schedule of CNS Act, 1997 was omitted. The contents of Notification dated 21.08.2020 for reference sake are being reproduced hereunder:-

GOVERNMENT OF PAKISTAN MINISTRY OF NARCOTICS CONTROL (6th Floor, Kohsar Block, Pak Secretariat)

No.13-20/2014-Policy-1 Islamabad 21st August, 2020

Subject: NOTIFICATION

The undersigned is directed to refer to Printing Corporation of Pakistan Press, Islamabad's S.R.O 446(I)/2020 dated 6th April, 2020 published in the Official Gazette of Pakistan Extra (Part-II on 20th May, 2020 (copy enclosed) and to state that Secretary, Ministry of Narcotics Control has been pleased to withdraw the following S.R.O. ab initio. A draft notification to this effect is also enclosed.

2. You are therefore requested to publish the withdrawal of above mentioned S.R.O immediately.

Encl: As above.

(Syed Saadat Ali Bokhar) Section Officer (Policy-1) Tele:051-9212815

The Manager, Printing Corporation of Pakistan Press, Islamabad.

The status of ketamine powder came under discussion before this Court in case reported as Lin Zhiwei v. The State and others (2020 PTD 1095) though in reference to the provisions of Customs Act, 1969 but since has some relevancy on the point in issue thus an excerpt is being referred below:-

"Therefore, without there being any specific and purposeful legislation, by no stretch of imagination anyone dealing with "Ketamine", can be hauled up on the pretext of committing a crime within Pakistan. Therefore, the word "ketamine" which otherwise is align to the Customs Act, cannot be imported and that too to the detriment to the accused. Consequently, it is held that "ketamine" is not an item which may said to be prohibited material or narcotic drug under any law for the time being in force in Pakistan."

10. In the wake of what has been mentioned above, it can unambiguously be held that recovery of Ketamine can in no manner entail consequences of a criminal case registered under section 9 of CNS Act, 1997. It goes without saying that every wrong does not necessarily give rise to the commission of crime. In order to bring act of an accused within the ambit of some penal law, it must primarily be proved that such wrong is made punishable under some express provision of law.

11. In view of the foregoing discussion, the instant petition is accepted and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00,000/- with two sureties each in the like amount to the satisfaction of learned trial court.

SA/D-6/L Bail granted.