1993 P Cr (PLP)

"3. (1) Prohibition of manufacture etc. of intoxicants.

Subject to the provisions of clause (2) whoever (a) imports, exports, transports, manufactures or process any intoxicant; (b) bottles any intoxicant, or (c) sells or serves any intoxicant; or (d) allows any of the acts aforesaid upon premises owned by him or in his immediate possession; shall be punishable with imprisonment of either description for a term which may extend to five years and with whipping not exceeding thirty stripes, and shall also be liable to fine. (i) imports, exports, transports, manufactures, or traffics in, opium or coca leaf or opium or coca derivatives; or (ii) finances the import, export, transport, manufacture, or trafficking of, opium or coca leaf or opium or coca derivatives; shall be punishable with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes, and shall also be liable to fine."

5. On a plain reading of the F.I.R. the case against the applicant and his brother absconding accused Dawood falls under clause (1) of Article 3 which provides a punishment upto 5 years. No doubt the offence does not fall within the prohibitory clause of section 497, Cr.P.C. but the recovery of such a huge quantity of contraband Charas at the instance of the present applicant leads to an inference that he traffics in narcotics. The case is of exceptional nature and the grant of bail in such cases is not desirable.

6. Mr. M. Ilyas Khan, learned counsel for applicant has contended with force that the case against the applicant falls under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and he is entitled to the grant of bail as of right as the offence is bailable. Article 4 upon which reliance is placed reads as follows:- "

4. Owning or possession intoxicant.

Whoever owns, possess or keeps in his custody any intoxicant shall be punished with imprisonment of either description for a term which may extend to two years, or with whipping not exceeding thirty stripes, and shall also be liable to fine: Provided that nothing contained in this Article shall apply to a non- Muslim foreigner or to non-Muslim citizen of Pakistan who keeps in his custody at or about the time of a ceremony prescribed by his religion a reasonable quantity of intoxicating liquor for the purpose of using it as a part of such ceremony: Provided further that, if the intoxicant in respect of which the offence is committed is heroin, cocaine, raw opium or coca leaf, and the quantity exceeds ten grams in the case of heroin or cocaine or one kilogram in the case of raw opium or coca leaf, the offender shall be punishable with imprisonment for life or imprisonment which is not less than two years and with whipping not exceeding thirty stripes, and shall also be liable to fine."

7. As indicated above it is not a case of simple possession. A huge quantity of contraband Charas was imported from tribal area and stored in a godown situated in Orangi Town. It is the case of prosecution that out of this quantity the applicant had removed contraband Charas weighing 5 Kgs. for supplying it to the customers. Obviously, therefore, it is not a case of simple ownership or possession of intoxicant. At any rate this question can only be determined after the case proceeds before the trial Court and it is too premature to say even for the limited purpose of bail that the case is covered under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, only.

8. No case for bail is made out and the application is accordingly dismissed. The trial Court is, however, directed to proceed with the case expeditiously and try to record the statements of the witnesses at an early date to enable the applicant to repeat his bail application. N.H.Q./M-1723/K Bail refused.