Find a Lawyer

Cr. Misc. No.4 of 2015, decided on 4th April, 2015.

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Possessing and trafficking of narcotics---Bail, refusal of---Huge quantity of 5 Kilograms of charas, value of about Rs.2,00,000 was recovered from accused, and Police submitted incomplete challan for trial of accused under S.9(c) of Control of Narcotic Substances Act, 1997---Later on Police filed complete challan for trial of accused under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979---As heavy quantity of charas was allegedly recovered from accused, S.9(c) of Control of Narcotic Substances Act, 1997, was appropriate law, which was attracted---Police malafidely exercised power of Anti-Narcotic Force and submitted incomplete challan under S.9(c) of Control of Narcotic Substances Act, 1997 first, and then final challan under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979, just to give benefit to accused, as offences under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979 did not fall within the prohibitory clause of S.497, Cr.P.C.---Mala fide on the part of Police, was glaring in circumstances---Bail petition was refused by the Chief Court with directions to the Inspector General of Police for taking disciplinary action against SHO and Investigating Officer for the evident mala fide on their part in conducting the investigation of the case. Hassan Jahangir for Petitioner. Mir Muhammad, Addl. Advocate General for the State.

Petitioner who is involved for the offence of Articles 3/4 Prohibition (Enforcement of Hadd) Order (4) of 1979, booked through FIR No.64/2014 of Police Station, Skardu dated 29-5-2014, seeks his release on bail through petition in hand. Previously petitioner moved a bail petition in the learned trial court who through his order dated 18-9-2014 dismissed the said petition, hence this petition. 2. Brief background of prosecution story of occurrence is that police of Police Station, Skardu recovered Charas weighing 5 kilograms of the value of about Rs.200000, from petitioner and submitted incomplete challan for trial of accused under section 9(c) of the Control of Narcotic Substances Act, hereunder referred as Act. On 24-9-2014 police filed complete challan for trial of petitioner under Articles 3/4 Prohibition (Enforcement of Hadd) Order (4) of 1979, hereunder referred as Order. 3. Learned counsel for the petitioner was of the opinion that the offences of Articles 3/4 of the Order does not fall with the prohibitory clause of Section 497, Cr.P.C., therefore, petitioners be released on bail. On the other hand the learned A.A.-G. was of the opinion that the malafides on the part of SHO as well as I.O. of the case are abundantly clear from their conduct in conducting the investigation of the case. 4. I have heard learned counsel for the petitioner as well as learned A.A.-G. at length and have gone through the file. From material available on file it is very clear that police recovered a huge quantity of narcotics from the petitioner/accused. According to the circumstances of the case the malafides on the part of police of Police Station, Skardu is glaring. During arguments before me I came to the conclusion that the Act and Order are two parallel laws regarding the same nature of offence i.e. narcotics trafficking. Both the laws are special laws and are in field in GB. The government has established Anti Narcotic Force for controlling for narcotic trafficking in GB. Section 9 (c) of the Act provides harsh punishment for offences of narcotic trafficking as compared to the punishment provided in corresponding Articles 3/4 of the Order. 5. In my opinion in the case in hand as the quantity of the Charas/narcotics allegedly recovered from the petitioner is a heavy quantity and Section 9(c) of the Act is the appropriate law that attracts to the alleged offence. The police of Police Station, Skardu had no power at all under the Act to chalk the FIR or investigate the case. Police of Police Station, Skardu very malafidely exercised power of Anti Narcotics force and submitted incomplete challan under section 9(c) of Act first and then final challan under Articles 3/4 of the Order. Very evidently to give benefit to the petitioner/accused. A very important conclusion is that the SHO and I.O. knew that he had no powers to submit incomplete challan under section 9(c) of Act. So the SHO or I.O. or both, if different persons, malafidely foul played by first chalking FIR, then submitting incomplete challan under section 9(c) of Act and then lastly transforming the offence from section 9(c) to under Articles 3/4 of Order. It is really playing with the system by the S.H.O. and I.O. 6. In these circumstances, instead of taking up the two laws for elaborate discussion I deem it proper to refuse this petition and also direct the IGP, Gilgit for taking disciplinary action against the S.H.O. and I.O. of Police Station, Skardu for the evident malafides on their part in conducting the investigation of the case. Moreover the IGP as well as the Chief Secretary should take up the question of existence or application of either of above two parallel laws in GB. Till then the investigation of the case be re-opened by the police of Anti Narcotics Force and the FIR chalked by the police of Police Station, Skardu be treated as an FIR chalked by Anti Narcotics Force. The IGP and CS should issue appropriate directions to all concerned police officials for application of either of the two laws in different occurrences of narcotic trafficking in GB. Office to send copy of this order to IGP for implementation and submission of compliance report to the Registrar of Chief Court Gilgit-Baltistan. File be consigned to record. HBT/75/GB Bail refused.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.