1997 P Cr (PLP)

MUHAMMAD ISLAM BHATTI, J.

The petitioner was arrested in a case under section 3/4 Prohibition (Enforcement of Hadd) Order, 1979 read with section 9 of Control of Narcotic Substances Ordinance, 1996 registered against him vide F.I.R. No.199 of 1996, dated 24-8-1996 with Police Station Liaqatpur, District Rahim Yar Khan.

2. The facts briefly as disclosed in the F.I.R. are that the police having information that the petitioner was indulging in the illegal business of selling of Charas arranged purchase of 20 grams of Charas from him by a decoy customer and consequently raiding party recovered 525 grams of Charas from his possession, when he was busy in the sale thereof outside his house in the public street, out of which ten grams of Charas was sealed into a parcel and sent for chemical examination. The petitioner was arrested and sent to judicial lock-up. He having declined bail by the learned Additional Sessions Judge, Rahim Yar Khan has filed this application before this Court for grant of bail. Ordinarily such matters are not placed before a Division Bench, but probably in view of the provisions of section 45 of Control of Narcotic Substances Ordinance, 1996. The bail matters in the cases under said Ordinance are fixed before a Division Bench and we dispose of this application accordingly.

3. The learned counsel for the petitioner contended that the Investigating Officer trapping the petitioner through a decoy witness effected alleged recovery of 525 grams of Charas without associating any public witness which made the transaction doubtful. He further contended that the provisions of Control of Narcotic Substances Ordinance, 1996 having been inserted parallel to the Prohibition (Enforcement of Hadd) Order, 1979, the petitioner cannot be refused bail on the ground that offence under Control of Narcotic Substances Ordinances, 1996 providing different penalty will prevail.

4. Learned counsel appearing on behalf of the State argued that the petitioner while dealing in Narcotic drugs committed an offence under section 9(c) of Control of Narcotic Substances Ordinance, 1996 and is riot entitled to the concession of bail. He argued that the sample of the recovered Charas was obtained but the report of the Chemical Examiner is still awaited.

5. We have heard the learned counsel for the parties at length and perused the record. This will be essential to examine the definition of Charas under the abovereferred two penal statutes.

6. Section 2(d) of the Control of Narcotic Substances Ordinance, 1996 defines Chaias as under:-- "(d) "cannabis (hemp)" means

(i) cannabis resin (Charas) that is, the separated resin, whether crude or purified, obtained from the cannabis plant also includes concentrated preparation and resin known as hashish oil or liquid hashish; (ii) the flowering or fruiting tops of the cannabis plant (excluding the seed and leaves) when not accompanied by the tops from which the resin has not been extracted by whatever name they may be designated or known; and (iii) any mixture with or without neutral materials of any of the above forms of cannabis or any drink prepared therefrom. " The narcotic drug has been defined under section 2(q) of ibid Ordinance as under:-- "'Narcotic drug' means coca leaf, cannabis, heroin, opium, poppy straw and fall manufactured drugs." Keeping in view the above definition of Charas and narcotic drug, the basic question would arise whether resin of the cannabis plant can be identified as resin obtained from the Indian hemp plant, which has been defined Charas under item 2 to the Schedule of the- Prohibition (Enforcement of Hadd) Order, 1979 in the following terms:-- "Charas, that is, the resin obtained from the Indian hemp plant, which has not been submitted to any manipulation other than those necessary for packing or transport." In the ordinary dictionary meaning, cannabis (hemp) and Indian hemp may be the same plant and resin obtained from them is called Charas and this is also not deniable that resin obtained in its original form is Charas for the purpose of Prohibition (Enforcement of Hadd) Order, .1979 whereas cannabis resin that is the separated resin obtained in any form is Charas under Control of Narcotic Substances Ordinance, 1996. However, unless it is ascertained through the expert evidence that all cannabis and Indian hemp plant belong to the same group and all kind of Charas in any form and of any origin falls within the definition of Narcotic drug, the provision of Control of Narcotic Substances, Ordinance, 1996 cannot be ipso facto made applicable as 'such in each case of Charas. This special law on Narcotic is only applicable to Narcotic drugs as defined therein and described in the Schedule and not to the intoxicant generally.

7. It may be pointed out that Control of Narcotic Substances Ordinance, 1996 has been promulgated not to substitute the Prohibition (Enforcement of Hadd) Order, 1979 but to control the production, processing and trafficking of narcotic drugs and psychotropic substances and to regulate the treatment and rehabilitation of narcotic-addicts. This being so, a distinction is to be drawn in the object, purpose and intend of the Ordinance in question to form a definite opinion. This is not disputable that all narcotic drugs are intoxicant but all intoxicant are not narcotic drugs and if the Charas with its generic name is of more than one kind and all kinds of Charas are not narcotic drugs, the Charas without proper distinction cannot be treated narcotic drug as such. The penalty provided under section 9 of the Control of Narcotic Substances Ordinance, 1996 cannot be imposed unless there is violation of provisions of sections 6, 7 and 8 of the said Ordinance, which prohibit possession, import and- export, trafficking or financing the trafficking of narcotic drugs, psychotropic substances or controlled substances, as the case may be.

8. From comparative study of the two statutes, it appears that the same do not deal the same subject and there being independent areas must not be mixed together and frustrate the basic purpose and object of two statutes. However, the fundamental question as to whether the Control of Narcotic Substances Ordinance has substituted the Prohibition (Enforcement of Hadd) Order, 1979 or it impliedly repealed the same and if so to what extent? and whether an offence punishable with different sentences, under different laws, which provision will prevail? unless are thoroughly scrutinized, it is difficult to hold that the provision of Prohibition (Enforcement of Hadd) Order, 1979 in such cases has become ineffective. This being so, generally to such circumstances the statutes providing lesser penalty are given effect and, therefore, the question under which provision of law the case is to be tried and by which forum is ascertainable.

9. There will be yet another question of the effect of section 65 of the Control of Narcotic Substances Ordinance, 1996, which needs determination. The overriding effect of this Ordinance is extendable to the matters, which fall within the ambit of this special statute and before taking action under a special statutes, the essential conditions provided therein to give validity must be fulfilled. There is no cavil to the proposition that recourse to the general provision of a statute for nullifying the special provision of such statute or another statute is n0t permissible but it is significant that applicability of a provision of law is always judged in the facts of an individual case. Therefore, without determining the basic question of the scope of. Control of Narcotic Substances Ordinance, 1996, viz-a-viz a transaction, section 65 of the said Ordinance will not be made applicable in each case mutatis mutandis. Before taking of the cognizance by the Court under this Ordinance in a case, the provision of section 65 of the ibid Ordinance for the purpose of ancillary matters will only take effect, if the offence in the nature of allegation on the face of it is punishable under the Ordinance in question. In the light of above, unless it is held that a case falls under the above said Ordinance, the application of Prohibition (Enforcement of Hadd) Order, 1979 cannot be excluded by reason only of the special character of Ordinance.

10. The allegations against the petitioner are that he was found selling Charas and a quantity of 525 grams thereof was recovered from him, but in absence of expert evidence, it is not even clear that it was in fact Charas. Anyhow, if ultimately, the Charas recovered from the petitioner is found narcotic drug at the trial, the maximum sentence provided under section 9(b) (iii) of the Ordinance is seven years. The principle of the grant of bail in the offence Clot falling within the prohibitory clause may not strictly applicable to the narcotic field but in the cases, which need further inquiry to ascertain the nature of offence with which an accused is being charged, the bail in term of subsection (2) of section 497, Cr.P.C. is claimed as of right.

11. A Division Bench of this Court at Rawalpindi to which one of us (Muhammad Nawaz Abbasi, J.), was member in identical case (Criminal Miscellaneous No.657/B of 1996) vide order, dated 6-11-1996 taking the similar view granted bail to the accused of the said case, who was found in possession of two Kgs. of Charas.

12. Without going deep into the merits of the case to prejudice the case of either party and give definite opinion about the nature of offence with which the petitioner is being charged, we find reasonable grounds for further inquiry into the question as to whether the offence allegedly committed by the petitioner, falls within the ambit of Control of Narcotic Substances Ordinance, 1996 triable by the Special Court constituted under said Ordinance or it exclusively is to be dealt with under Prohibition (Enforcement of Hadd) Order, 1979, the petitioner is entitled to the concession of bail and consequently we allow this application. The petitioner is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs:1,00,000 with one surety in the like amount to the satisfaction of the trial Court. N.H.Q./M-435/L Bail granted.