GHARIB ULLAH Versus THE STATE
This matter concerns a bail application filed by the petitioner, Gharibullah, who was arrested for the possession of 14 kilograms of Charas recovered from a motor car by a Head Constable. The primary legal question was whether the search and arrest conducted by a police officer below the rank of Sub-Inspector under the Control of Narcotic Substances Act, 1997, rendered the proceedings illegal, thereby entitling the accused to bail. Additionally, the court considered whether the petitioner could be charged under the Prohibition (Enforcement of Hadd) Order, 1979, as an alternative. The Peshawar High Court held that the search and arrest by an officer below the rank of Sub-Inspector under the Control of Narcotic Substances Act, 1997, were illegal. Furthermore, the Court determined that even if the petitioner were charged under the Prohibition (Enforcement of Hadd) Order, 1979, the maximum punishment of five years imprisonment would not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898. Consequently, the bail application was allowed, establishing that procedural non-compliance regarding the rank of the arresting officer under the Control of Narcotic Substances Act, 1997, constitutes valid grounds for bail.
- Does a search and arrest conducted by a police officer below the rank of Sub-Inspector under the Control of Narcotic Substances Act, 1997, entitle an accused to bail?
- Does the maximum punishment of five years imprisonment under the Prohibition (Enforcement of Hadd) Order, 1979, fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898?
- Section 9(3), Control of Narcotic Substances Act 1997
- Section 497, Code of Criminal Procedure 1898
- Prohibition (Enforcement of Hadd) Order 1979
On 23‑10‑2001, Head Constable of Police Station Alpuri stopped a motor car at Check Post Shangla and on its search recovered 14 Kgs. of Charas from the secret cavities. The occupant of the car, Gharibullah, resident of Gul Abad, Peshawar was arrested and taken to the Police Station alongwith the car. A case under section 9(3) of the Control of Narcotic Substances Act was registered. The accused was declined bail by the lower Courts and has now moved the High Court.
2. The learned counsel appearing for the petitioner pointed out that search and arrest under the Control of Narcotic Substances Act cannot be carried out by Police Officer below the rank of Sub‑Inspector as now laid down by a Full Bench of this Court. This in itself, it was contended, entitles the petitioner to bail. The learned counsel representing tile State conceded the legal position as regards C.N.S.A. but contended that the petitioner can still be charged and tried under the Prohibition Order, 1979.
3. This Court has undoubtedly declared that search and arrest of in accused by a police officer below the rank of Sub‑Inspector under the C.N.S.A. is illegal and would entitle an accused to bail. However, even if the petitioner is charged under the Prohibition Order the maximum punishment for trafficking Charas, regardless of its quantity, is 5 years imprisonment. This would take the case out of the ambit of the Prohibitory Clause of section 497, Cr.P.C. The application is, therefore, allowed and the petitioner is admitted to bail in the sum of Rs.2,00,000 (Rupees two hundred thousand) with two sureties each in the like amount to the satisfaction of the Illaqa/Duty Magistrate.
N.H.Q./429/P. Bail allowed.