WARIS KHAN vs THE STATE

Waris Khan son of Wali Muhammad is apprehended and refused bail by the Court' below on charges under section 3/4 of the Prohibition Order levelled vide F.I.R. No,159, dated 19-9-1,999 of Police Station Gumbat, Kohat.

2. S.H.O. Police Station Gumbat had information that the accused is dealing in narcotics whereupon he conducted a raid on the house of accused Waris Khan on 19-9-1999 at 11-10 hours. During search he recovered contraband Charas weighing 1600 grams and certain fire-arms. A case under section 9 of the Control of Narcotics Substance Act was registered against the petitioner while a case under section 13, Arms Ordinance was registered against his brother Raees Khan. It is stated at the Bar that Raees Khan had produced licence for the recovered arms and hence stands released on bail.

3. So far as the recovery of Charas is concerned, it is duly proved through the witnesses of the recovery as well as from the circumstance that the petitioner decamped from the spot after having been confronted with the police. As the provisions of section 103, Cr.P.C. Are not applicable to the Control of Narcotics Substance Act, the objection thereabout is overruled at this stage.

Learned counsel for the petitioner raised a substantial objection about the mode of ingress into the house of the petitioner by the police and claimed it to be seriously violative of section 21 of the Control of Narcotics Substance Act.

4. It is an admitted fact on record that no search warrant was obtained by the S.H.O. Before entering into the house of the petitioner. Section 21 of the Act lays down that an officer of the police, not below the rank of Sub-Inspector, can enter into someone's house without warrant for search or for arrest only when he is satisfied from his personal knowledge or from information given to him that any narcotic drugs, psychotropic substance or controlled substance is kept or concealed in any building, place, premises or conveyance and that if he initiates to obtain a warrant for search or arrest, the culprit would be afforded an opportunity for the concealment of evidence or for escape.

5. This condition presupposes a situation where there should be prima facie evidence of the involvement of culprit and the nature and gravity of information that constituted the knowledge of such Police Officer. A perusal of F.I.R. In the instant case discloses neither of the two circumstances.

The S.H.O. Has not disclosed the nature of evidence and also the source and the gravity of his knowledge wherefrom he was satisfied of the circumstances mentioned in the section. Had such circumstances existed, he would have been at liberty to Act under the emergency. It is for this purpose that subsection (2) is further added to section 21 which requires the Police Officer that before or immediately after taking any action under subsection (1) of section 21, he shall record the grounds and basis of his information and also of the proposed action and shall forthwith send a copy thereof to his immediate superior Officer. This is a mandatory provision of law.

6. In the case in hand, the Police Officer has not at all recorded the grounds and basis of his information and reasons, why he avoided to obtain a search warrant. Neither this mandatory provision was resorted to before nor immediately after taking any action. The strong presumption would be that no circumstances existed at all to empower the Police Officer to avoid obtaining the search warrant. The apprehensions that the accused in the meantime would conceal the evidence or would make good his escape, are also not mentioned in the F.I.R. Or in any other report to be furnished immediately after taking any action. These provisions are given in the relevant law in order to safeguard the right or privacy of a citizen which should not be allowed to be violated at the whims of a Police Officer.

7. In the circumstances discussed above, the petitioner is at least entitled to be released on bail till the Police 'Officer during trial justifies his action. The application is accepted and the petitioner is directed to be released on bail provided a bond in a sum of Rs,80,000 with two local, reliable and resourceful sureties is furnished to the satisfaction of learned Special Court.