Mrs. MAHMOOD HASSAN vs Ch. MUHAMMAD ISMAIL and others
This petition for leave to appeal was filed by the wife of a detenu challenging the Lahore High Court's dismissal of her habeas corpus petition. The detenu had been arrested in connection with an F.I.R. registered under the Control of Narcotic Substances Act, 1997, regarding the smuggling of 400 kilograms of hashish. The petitioner contended that the detention was illegal due to violations of various provisions of the Code of Criminal Procedure, 1898, specifically alleging the absence of a valid remand order and failure to submit a challan. The Supreme Court observed that a challan had indeed been submitted and the substantive case was pending before the Sessions Court. Furthermore, the Court noted that the Control of Narcotic Substances Act, 1997, empowers the Special Court to grant remand. Holding that the detention was not without lawful authority and that the appropriate legal remedies lay within the framework of the Code of Criminal Procedure, 1898, and the Control of Narcotic Substances Act, 1997, the Supreme Court dismissed the petition and refused leave to appeal.
- Does a habeas corpus petition lie when a challan has been submitted and the case is pending before a competent court?
- Does the Control of Narcotic Substances Act 1997 empower a Special Court to grant remand?
- Can a writ petition be maintained to challenge detention when alternative remedies under the Code of Criminal Procedure 1898 are available?
- Section 9, Control of Narcotic Substances Act 1997
- Section 19, Control of Narcotic Substances Act 1997
- Section 61, Code of Criminal Procedure 1898
- Section 62, Code of Criminal Procedure 1898
- Section 167, Code of Criminal Procedure 1898
- Section 173, Code of Criminal Procedure 1898
- Section 354, Code of Criminal Procedure 1898
- Section 49(3), Control of Narcotic Substances Act 1997
ORDER
' NASIR ASLAM ZAHID, J.---Petitioner who is wife of detenu Mahmood Hassan has filed this petition for leave against the order dated 18-8-1997 passed by the learned Single Judge of the Lahore High Court dismissing Writ Petition No,17749 of 1997. The said writ petition being in the nature of habeas corpus had been filed by the petitioner seeking release of her husband Mahmood Hassan Harvi detained in District Jail, Lahore. We have heard Mian Abdus Sattar Najam, learned Advocate Supreme Court for the petitioner, and Sh. Anwarul Haq, learned Deputy Attorney-General, for the respondents. With the assistance of the learned counsel, we have referred to the relevant record.
2. Detenu was arrested on 27-5-1997 from Karachi and on the same day an F.I.R. Was registered at P.S. Anti Narcotics Force, Lahore, under section 9/19 of the Control of Narcotic Substances Act, 1997.
The case against the detenu is that he was involved in smuggling of 400 k.g. Of "Hashish". Prior to the filing of the said Writ Petition No,17749 of 1997, the petitioner had filed a similar Writ Petition being No,17082 of 1997 but the earlier writ petition was dismissed by the High Court by order dated 29-7-1997. Writ petition in question has also been dismissed by the same learned Judge of the Lahore High Court by impugned order dated 18-8-1997.
3. It has been alleged that the arrest and detention of the detenu was in violation of sections 61, 62, 167, 173 and 354, Cr.P.C. It was pointed out by learned counsel for the petitioner that, according to his information, still no challan has been presented against the detenu. It was further submitted that even from a bare perusal of the FIR., no case is made out against the detenu and his detention is, therefore, patently illegal. It was argued by Mian Abdus Sattar Najam that no remand order had been passed justifying the continued detention of the detenu and even otherwise his detention was without lawful authority. Learned D.A.G. Opposing the petition for leave submitted, on instructions, that challan has been submitted against the petitioner/accused on 9-8-1997 and the substantive case is now pending before the learned Sessions Judge. According to learned D.A.G., no case for interference in the impugned order is called for. The High Court in the impugned order has noted the provision in section 49(3) of the Control of Narcotic Substances, Act 1997 empowering the Special Court comprising a Judicial Magistrate 1st Class to grant remand and that the name of the detenu is specifically mentioned as one of the accused in the smuggling of 400 k.g. Of "Hashish" on the basis of investigation conducted. Finding no merit, the second writ petition filed by the detenu has also been dismissed. After hearing learned counsel for the petitioner and learned D.A.G., we are of the view that no case for grant of leave is made out. The case under the substantive law has been registered against the detenu and challan has been presented against him. Appropriate course to follow for the petitioner/detenu is to resort to the remedies provided under the Criminal Procedure Code and/or the Control of Narcotic Substances Act, 1997.
' As a result, this petition is dismissed and leave is refused.