GHA RIB ULLAH vs THE STATE
This matter comes before the Peshawar High Court through a bail application filed by Gharibullah, who was arrested after 14 kilograms of Charas were allegedly recovered from a motor car he was occupying, leading to a case registered under the Control of Narcotic Substances Act. The core legal question concerns whether the arrest and search conducted by a police officer below the rank of Sub-Inspector vitiates the proceedings under the Control of Narcotic Substances Act, and whether bail should be granted when the offense falls outside the prohibitory clause of the Code of Criminal Procedure 1898. The court held that search and arrest by a police officer below the rank of Sub-Inspector under the Control of Narcotic Substances Act is illegal and entitles the accused to bail. Furthermore, even if evaluated under the Prohibition Order 1979 where the maximum punishment is five years, the case falls outside the prohibitory clause of Section 497, Code of Criminal Procedure 1898. Consequently, the court admitted the petitioner to post-arrest bail, laying down the principle that procedural non-compliance regarding the rank of the arresting officer under narcotic laws warrants bail, particularly when the potential punishment does not attract the prohibitory clause.
- Does the search and arrest under the Control of Narcotic Substances Act by a police officer below the rank of Sub-Inspector entitle the accused to bail?
- Does an offense carrying a maximum punishment of five years imprisonment fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Can an accused charged with the transportation of narcotics be granted bail when procedural illegalities vitiate the primary charge?
- Section 9(3), Control of Narcotic Substances Act
- Section 497, Code of Criminal Procedure 1898
' 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 the 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 an 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.
Cited by 4 cases
- MUHAMMAD SHAHID CHIRAGO vs THE STATE 2008 MLD 442
- ABDALI SHAH vs STATE PLJ 2008 Cr.C. (Karachi) 1178
- ABDALI SHAH vs THE STATE 2008 PLD Karachi 57
- JAMEEL KHAN vs THE STATE 2003 P Cr. L J 1139