STATE through A.-G. Sindh, Karachi vs HEMJOO

' MUHAMMAD NAWAZ ABBASI, J.---The State has preferred this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan 1973 against the judgment, dated 20-8-2002 passed by a Division Bench of High Court of Sindh, Hyderabad Bench, whereby the criminal appeal filed by Hemjoo, respondent herein, was allowed.

2. The relevant facts giving rise to this petition are that Mr. Zulfiqar Ali Talpur, Excise Inspector, Digri, alongwith his subordinate staff, on receipt of secret information, made a raid at the residence of respondent Hemjoo in village Abdul Aziz Nawaz Khan, Taluka Kot Ghulam Muhammad. The Excise Inspector made personal search of the respondent but no incriminating material was recovered and consequently, he made search of the house of respondent and recovered a bag, made of cloth, containing Charas in pieces weighing one kilogram wrapped in a plastic bag from the bedroom. The Inspector separated 100 grams Charas in a sealed parcel and sent the same to Chemical Examiner for opinion and the remaining Charas was kept in a separate sealed parcel.

The respondent faced trial for the charge under section 9(b) of Control of Narcotic Substances Act, 1997 before the Judge, Special Court established under the said Act at MirpurKhas, and the learned trial Judge upon conclusion of the trial, having found the respondent guilty of the charge convicted him accordingly and sentenced him to five years' R,I. With fine of Rs,20,000 and in default of payment of fine, directed him to undergo R.I. For six months vide judgment, dated 28-3-2002. A Division Bench of High Court of Sindh at Hyderabad in appeal preferred by the respondent against his conviction and sentence, acquitted him from the charge, through the impugned judgment. The main ground favoured with the learned Division Bench was that despite availability of independent persons only members of raiding party were cited as recovery witnesses and withholding the public witnesses made the recovery doubtful. The learned Judges in the High Court without, taking any exception to the law laid down by this Court in Tariz Pervez v. State (1995 SCM R 1345) and State v. Muhammad Amin (1999 SCM R 1367) held that the police officers were as good witnesses as any, other person, but the credibility of their evidence must be judged in the facts of each case.

3. Learned Additional Advocate-General, Sindh, has submitted that section 21 of the Control of Narcotic Substances Act, 1997 would empower an Excise Inspector to make search of the house, therefore, the members of raiding team would be competent witnesses and the provisions of section 103, Cr.P.C. Being not attracted in the cases under the Control of Narcotic Substances Act, 1997, the exclusion of the evidence of officials of Excise Department was not proper and legal. The learned Additional Advocate-General has also submitted that the offence with which the respondent was charged, would squarely fall within the ambit of section 9(b) of the Control of Narcotic Substances Act, 1997, and the conviction and sentence awarded to him by the trial Court would not call for interference in appeal.

4. An officer not below the rank of Sub-Inspector, Police, or equivalent authorized in this behalf by the Federal Government or Provincial Government in exercise of his power under section 21 of the Control of Narcotic Substances Act, 1997, ins satisfied that a warrant of arrest as provided under section 20 of the Act cannot be obtained, can enter into the premises without a search warrant and make search on the basis of personal knowledge or on receipt of information of commission of an offence mentioned in the above Act, by any person. In the present case, the Excise Inspector on receipt of information, went to the house of respondent and made his personal search and then by making house search, recovered Charas from the bed room of the house, without satisfying the requirement of section 21 ibid. The combined study of sections 20 and 21 of the Control of Narcotic Substances Act, 1997 would show that only in exceptional cases in which the search warrant cannot possibly be obtained before conducting the raid, an officer authorized in this behalf can proceed for conduct of raid without the warrant but this power cannot be allowed to be used in every case in the normal circumstances. The Excise Inspector on the information, proceeded to conduct the raid and could conveniently obtain the search warrant from the Court of Special.

Judge but he having felt no necessity of such warrant, transgressed the authority of law which would make the search of house illegal. The learned Additional Advocate-General has not been able to convince us that in the facts of the case, the requirement of search warrant could be dispensed with. We having heard the learned Additional Advocate-General have not been able to find the acquittal of the respondent by the High Court, against the interest of criminal administration of justice.

5. For the reasons given above, this petition having no substance is dismissed. Leave is refused.