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Criminal Miscellaneous No. 4731 of 1967, decided on Ist December 1969.

S. 561‑A‑Criminal trial‑Illegality in investigation or arrest of accused‑Does not divest Court of its jurisdiction‑‑Proceedings in such case will still be competent.

Mst. Sadan v. State P L D 1965 B J 12 ref.

S. 31‑Word "or" between words "First Class" and "a Magistrate of the Second Class"‑Indicates that special authorisation required only in respect of a Magistrate of Second Class.

Syed Manzoor Hussain Bokhari for Petitioner.

Masood‑Ahmad Khan for the State.

This is an application for quashment 61 proceedings, pending against the petitioner and his brother Jan Muhammad under the Dangerous Drugs Act of 1930 (herewith called the Act). A complaint was made by Jalal Muhammad, a member of the District Council to the effect that the accused had grown poppy plants in their field in violation of the provisions of the Act search was made and thirty plants of poppy were taken out the field belonging to the petitioner and his brother. The case is pending before the S. D. M., Lodhran. Syed Manzoor Hussain Bokhari, learned counsel for the petitioners has made the following submissions :

(1) That the offence under section 11 of the Act is punishable with two years' rigorous imprisonment and is, therefore, non‑cognizable. According to the contention of the learned counsel the police had no jurisdiction to investigate the case and the whole proceedings are, therefore, vitiated,

(2) that the Magistrate who is cognizant of the case is not authorised under the law, and

(3) that the recovery of only thirty plants of poppy does not fall within the definition of the word "Cultivation of poppy" which is prohibited under the law. The learned counsel argues that there should be extensive cultivation to prove that the law was violated.

2. The learned counsel for the petitioner was not able to cite any provision of law under which the offence under section 11 of the Act could be considered as non‑cognisable. Chapter IV lays down the procedure for dealing with the cases, arising out of the Act. Under section 22 of the Act, a Magistrate of the First Class, or a Magistrate of the second class specially empowered in that behalf is authorised to issue a warrant of arrest of any person against whom he has reason to believe that he had committed an offence punishable under Chapter III of the Act. Under section 23 any officer of the department of Excise, Police, Customs, Salt, Opium or 'K, Revenue, superior in rank to a peon or constable, authorises in this behalf by the Provincial Government, may between sunrise and sunset enter into any building, vessel or place where a dangerous drug is kept, and may arrest a person, if 'he has reason to believe from his personal knowledge or from information given by any person and taken down in writing that an offence punishable under Chapter III of the Act, has been committed. The contention raised is that the sub -Inspector who had arrested the accused was not authorised under the above provision of law. There is a. presumption of regularity about official Acts and a bare assertion by the counsel is not enough to show that there was no authorisation. Even if the such inspection, was not authorised the arrest could perhaps be made under section 24 of the Act according to which any officer belonging to any of the departments mentioned in section 23 may arrest a person who is found in unlawful possession of dangerous drugs.

I also feel that even if there was any illegality attaching to the investigation, or to the arrest of the petitioner, the proceedings before the Court will still be competent. The Court is not divested of its jurisdiction because of the fact that an illegality attaches to the investigation. The learned counsel for the State in this connection relies on Mst. Sadan v. State (P L D 1965 B J.12).

2. The second contention regarding the jurisdiction of the Court is also not well‑founded. This contention is based on the language of section 31 of the Act, the relevant portion of which is as follows :‑

"No Magistrate shall try an offence under this Act unless he is a Magistrate of the First Class, or a Magistrate of the Second Class, ‑ specially empowered by the Appropriate Government in this behalf."

The contention of the learned counsel for the petitioners that even a Magistrate of the First Class is to be specially empowered before he could proceed with a case under the Act, has no force. The language of the section is clear. The word "or" in between the words First Class and a Magistrate of the Second Class clearly indicates that the special authorisation is required only in respect of a Magistrate of Second Class and a Magistrate of the Ist‑ Class, has the jurisdiction to hear the case without the conferment of authority.

3. The third contention of the learned counsel for the petitioner relates to a question of fact. On the allegations, as made in the case, 30 plants of poppy were recovered from the field of the petitioner and his brother Jan Muhammad. Whether it amounts to cultivation as contemplated by section 5 of the Act would be a question for the trial Court to determine after recording the evidence.

4. I, therefore, find no ford in this petition, which is hereby dismissed.

.

Petition dismissed

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