NAUROZ KHAN alias TOUR vs THE STATE

Refused bail by the Courts below in case F.I.R. No,537, dated 25-12-1999 of 'Police Station Yu Hussain, Swabi on charges under section 3/4 of the Prohibition Order, Nauroz Khan has filed this application.

2. Syed Liaqat Shah, S.H.O. Police Station Yar Hussain, on 25-12-1999 at 12-30 hours apprehended Nauroz accused from whom 37 grams of heroin was recovered. So far as the recovery is concerned it is proved on record at least for the present stage and is even not contested by the learned counsel.

3. What the learned counsel disputes is the registration of case under section 3/4 of the Prohibition Order which according to him should have been registered under the provision of the Control of Narcotic Substances Act, 1997.

4. At early stages after the promulgation of the Control of Narcotic Substance Act, 1997, on the 7th July, 1997, the state of affair remained somewhat dilemic when juxtapose to the provisions of Prohibition (Enforcement of Hadd) Order, 1997. But a close and detailed examination of the Control of Narcotic Substance Act, 1997 (hereinafter to be referred to as the Act of 1997), would set the matter at naught. It is obvious that the Act of 1997 is a subsequent as well as latest law on the subject of Narcotics as compared to the Prohibition Order of 1979. It is also manifest that the Act of 1997 is more exhaustive than the Prohibition Order. Apart from its subsequent promulgation and its exhaustiveness, section 76 read with section 74 of the Act of 1997 clearly provided that the provisions of the Act shall have effect notwithstanding anything contained in any other law for the time being in force. Both the sections give overriding effect to the Act over the provisions of any other law for the time being in force including the Prohibition Order of 1997.

5. It is, therefore, abundantly clear that the provisions of the Act shall apply to all the offences mentioned therein regardless of the fact that such offences are mentioned in any other law as well.

Thus, while defining an offence and while applying the incriminating section of any law, the prosecution shall resort to the provisions of the Act of 1997 regardless of any other law. In the circumstances the Investigating Officer, in the instant case ought to have applied section 9 of the Act and not section 3/4 of the Prohibition Order. The instant case, therefore, shall be dealt with under section 9 of the Act.

6. It is a case of recovery of 37 grams of heroin which is an offence under section 9(a) of the Act, the punishment whereof may extend to two years or with fine or with both. This being the punishment, the offence is also excluded from the mischief of section 51(1) of the Act. The Court can appreciate the matter under section 497, Cr.P.C. As provided by subsection (2) of section 51 of the Act.

7. If so appreciated, the offence in hand entailing a punishment of not mere than two years, does not fall within the prohibitory clause of section 7 of the Cr.P.C: The application is accepted and the petitioner is directed to be released on bail provided a bond in a sum of Rs,3,00,000 with two local reliable and resourceful sureties is furnished to the satisfaction of the Special Court under the Ac.