SAEED RASUL vs THE STATE
This matter arises from a criminal petition filed under section 497 of the Code of Criminal Procedure 1898 seeking post-arrest bail in a case registered under section 9/B of the Control of Narcotic Substances Act 1997 and Articles 3/4 of the Prohibition (Enforcement of Had) Order 1979. The core legal question concerns whether the petitioner is entitled to post-arrest bail given the recovery of 520 grams of charas, the alleged non-compliance with section 103 of the Code of Criminal Procedure 1898, and the applicability of overlapping penal statutes. The court held that where an offence is covered by two different statutes, the later statute prevails, making the Control of Narcotic Substances Act 1997 applicable, which provides up to 7 years imprisonment. The court further held that section 21 of the Control of Narcotic Substances Act 1997 answers objections regarding section 103 of the Code of Criminal Procedure 1898, and that incompetence of a police officer to investigate does not invalidate proceedings under section 156(2) of the Code of Criminal Procedure 1898. Finding that the recovery of a considerable quantity of narcotics constitutes an exceptional circumstance against society, the court dismissed the bail petition.
- Which statute prevails when an offence is defined under two different statutes?
- Does the incompetence of a police officer to investigate a case invalidate the proceedings?
- Does the non-joining of public witnesses in narcotics recovery vitiate the proceedings in view of the Control of Narcotic Substances Act 1997?
- Is bail to be refused in cases involving considerable quantities of narcotic substances despite falling outside the prohibitory clause?
- Section 497, Code of Criminal Procedure 1898
- Section 9/B, Control of Narcotic Substances Act 1997
- Article 3, Prohibition (Enforcement of Had) Order 1979
- Article 4, Prohibition (Enforcement of Had) Order 1979
- Section 103, Code of Criminal Procedure 1898
- Section 21, Control of Narcotic Substances Act 1997
- Section 156(2), Code of Criminal Procedure 1898
ORDER
Through this application under section 497, Cr.P.C. The petitioner seeks after arrest bail in case F.I.R.
No.243 dated 17-9-2002 under section 9/B of Control of Narcotic Substances Act, 1997 read with Articles 3/4 of Prohibition (Enforcement of Had) Order IV of 1979 registered at Police Station Fateh Pur, District Layyah.
2. The brief allegation against me petitioner is that when he was arrested by the raiding party headed by Muhammad Akram. A.S.-I., Police Station Fateh Pur, he was found in possession 520 grams charas, out of which 20 grams of charas was separated for sending the same to the office of Chemical Examiner for analysis.
3. Learned counsel for the petitioner contends that the petitioner has been involved in this case due to previous enmity. He has further contended that the A.S.-I. Was not competent to investigate the case and whole proceedings are illegal. It is argued that no public witness was joined in the recovery proceedings which is violation of section 103 Cr.P.C. Also contends that it is settled principle of law that if an accused is involved in an offence, punishable under different statute the maximum punishment provided thereunder is to be considered for the grant of bail or conviction. It is also contended that the prosecution story is not plausible and sufficient evidence has not been collected so far by the prosecution to connect the petitioner with the commission of crime. It is further contended that Article 4 of P.E.H.O. Is punishable only with two years R.I and is also bailable.
Learned counsel for the State opposes the bail petition on the ground that the huge quantity of narcotic substance has been recovered from the, petitioner and he is not entitled to the grant of bail.
4. We have heard the learned counsel for the parties and also perused the record.
5. As regards the contention that recovery has been effected in violation of section 103, Cr.P.C., section 21 of CNSA, 1997 is the complete answer to this objection. As far as the objection that the A.S.-I. Was not competent to conduct the investigation and the whole proceedings are illegal, the Honourable Supreme Court of Pakistan in a case reported as The State v. Zafar Ahmad PLD 1997 SC 480 has already held that incompetence of police officer to investigate the case is not sufficient to invalidate the proceedings an envisaged under section 156(2), Cr.P.C. Now we consider the other argument of learned counsel for the petitioner that the offence is defined in two different statutes.
We are of the view that in such situation the last statute will prevail and the CNSA is the last statute, which provides 7 years imprisonment for the offence. We are mindful that in cases not falling within the prohibitory clause of section 497, Cr.P.C. Grant of bail is a rule and its refusal is an exception, but it does not mean that the offence is bailable and the discretion still rests with the Court, which has to be exercised keeping in view of the facts circumstances of each case. The Court refuse bail in exceptional circumstances. The petitioner is involved in an offence which is against the society and considerable quantity of charas has been recovered from him, hence, we find that his case falls within the exception. He is not entitled to any discretionary relief by this Court. This petition is dismissed.