2023 PLP 924 (MLD)

ROOH-UL-AMIN KIIAN, J.

This criminal appeal, filed by Haris, the appellant, is directed against the judgment dated 14.10.2021, passed by learned Sessions Judge/Judge Special Court, Nowshera, whereby the appellant has been convicted under section 9(a), Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 ("Act of 2019") and sentenced to pay Rs.500/- as fine and in default thereof to further undergo 02 days simple imprisonment. The appellant has been further convicted under section 11(h) of the Act of 2019 and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of rupees five lacs or in default thereof to further undergo fifteen days simple imprisonment, in case FIR No.720 dated 22.12.2020 registered under sections 9(d) and 11(b) of the Act of 2019 at Police Station Risalpur District Nowshera. Benefit of section 382-B, Cr.P.C., has been extended to him.

2. The prosecution's case as unfolded in the First Information Report ("FIR") Exh.PA is that on receipt of spy information qua presence and dealing of the appellant in the detestable business of narcotics on a thoroughfare leading to village Behram, on 22.12.2020 Bilal Halim SHO (PW.2) along with other police officials reached the spot and apprehended the appellant along with a polythene bag, search of which led to the recovery of 1010 grams chars and 755 grams Ice. The complainant-SHO, separated 05 grams from the chars and 01 gram from the Ice, as samples for chemical analysis by the FSL and took the remaining quantity into possession vide recovery memo Exh.PW.1/1 in presence of its marginal witnesses. He drafted Murasila Exh.PA/1 on the basis of which FIR Exh.PA was registered against the appellant. He also prepared arrest card of the appellant Exh.PW.2/1.

3. Fazal Naeem Khan SI (PW.5), proceeded to the spot and prepared site plan Exh.PB on the pointation of complainant/Seizing Officer, obtained physical custody of the appellant from the court of learned Judicial Magistrate, interrogated him and recorded his statement under section 161, Cr.P.C. He also recorded statements of the PWs under section 161, Cr.P.C., placed on file the FSI, report Exhd.PZ qua the samples, extracts of Register No.19 and Register No.21. On completion of investigation he handed over case file to SHO, who submitted challan against the appellant before the learned trial Court.

4. On receipt of challan by the learned Trial Court, the appellant was summoned and formally charge sheeted to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined as many as five witnesses. After closure of the prosecution's evidence statement of the appellant was recorded under section 342, Cr.P.C., wherein he denied the prosecution's allegation and professed his innocence. He, however, declined to he examined on oath under section 340(2), Cr.P.C. or to produce evidence in defence. On conclusion of trial, the learned trial Court, after hearing both the sides convicted and sentenced the appellant as mentioned above, hence, this appeal.

5. Arguments of learned counsel for the parties heard and record perused.

6. Bilal Halim complainant-SHO and Constable Imran Ali, have furnished ocular account of the occurrence. The former while appearing as PW.2 reiterated same story of the arrest of appellant and recovery of narcotics from his possession, as set forth by him in the FIR, which has already been dealt with in the earlier part of this judgment. The latter while appearing as PW.1 deposed that in his presence, Bilal Halim SHO, apprehended the appellant and from polythene bag in his possession, recovered 1010 gram charas and 755 grams Ice. After separating samples, the SII0 took the remaining quantity into possession through recovery memo Exh.PW.1/1 in his presence, which bears his signature as its marginal witness. Both the above named prosecution's witnesses have been subjected to lengthy and taxing cross-examination but nothing beneficial to defence could be extracted from their mouths. They remained stuck to their stance and corroborated each other on all material aspects of the occurrence such as the day, date, time and place of occurrence and the mode and manner of arrest of the appellant and recovery of narcotics from his possession. The recovered contraband narcotics have been produced before the learned trial Court in the statement of PW.1 as Exh.P.1. Nothing in black and white is available on file to show any ill will or enmity of the PWs with the appellant so as to suggest his false implication.

7. The prosecution has also proved the chain of circumstances with regard to sending samples from the spot to the FSL through cogent evidence. Kazim Khan Moharrir (PW.3), deposed that on 22.12.2020, Constable Shah Rukh handed over him Murasila and the appellant along with case property for safe custody and onward transmission of the samples to the FSL. In this regard he made entry in Register No.19 extract of which is Exh.dPW.3/1. On 23.12.2020, he handed over the samples to Constable Saddiq along with Randari receipt for its onward transmission to the FSL. Saddiq Akhtar FC (PW.4) deposed that on 23.12.2020, Moharrir of the Police Station handed over him parcels Nos.1 and 2 containing samples of chars and Ice, respectively, along with receipt Randari for its onward transmission to the FSL. lie took the samples to the FSL and returned receipt which is placed on file. As per FIR, the occurrence has taken place on 22.12.2020 and the samples have been received in the Laboratory on 23.12.2020 i.e. with promptitude. In this view of the matter, Positive FSI, report qua samples Exh.PZ containing protocols of test applied further supplements the testimony of the Seizing Officer. The appellant did not opt to appear in the witness box as his own witness or to produce defence evidence to rebut the prosecution's evidence.

8. On reappraisal of the evidence available on file, I have arrived at a conclusion that the prosecution has proved its case against the appellant through cogent and confidence inspiring evidence. In this view of the matter, the learned trial Court has not committed any wrong while holding the appellant guilty of the offence to which no exception can be taken, however, keeping in view the FSL report Exh.PZ wherein material in parcel No.1 has been opined as "chars" and material in parcel No.2 as "Amphetamine", the conviction and sentence of the appellant under section 11 (b) of the Act of 2019, requires serious consideration.

9. Prior to promulgation of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 ("Act of 2019"), the Control of Narcotic Substance Act, 1997 ("Act of 1997") was in the field. After promulgation of the former Act, the latter Act was repealed to the extent of cultivation, possession, selling purchasing, delivery and transportation etc, within the Province of Khyber Pakhtunkhwa. As per preamble, the aim and object of the Act of 2019 is to provide for strict punishment for the newly introduced drugs duly find its mention in the Schedule attached to the Act of "2019. The point for determination in this case is whether "Amphetamine" falls within the ambit of section 9 or in section 11 of the Act of 2019. In section 2(aj) of the Act of 2019 "psychotropic Substance" is defined as below:- "Psychotropic substance means the substance specified in the Schedule appended to this Act and such substances as Government may, by notification in the official Gazette, declare to be a psychotropic substance." Section 9 of the Act of 2019, provides punishments for "psychotropic substance", "narcotics drug" and "controlled substance" in the following manner:- (a) Imprisonment, which may extend upto two years, or with fine, or with both, if the quantity of the narcotics drug, psychotropic substance or controlled substance is less than fifty grams; or (b) Imprisonment which may extend upto three years and with fine which may extend upto rupees one lac but shall not be less than rupees fifty thousand, if the quantity of the narcotic substance exceeds fifty grams but does not exceeds one hundred grams; or (c) Death, imprisonment for life or imprisonment for a term which may extend to fourteen years and with fine which may extend up to rupees one million and not less than five lacs, if the quantity of narcotic substance exceeds the limits of one Kilogram. Provided that, if the quantity exceeds ten kilograms, the punishment shall not be less than imprisonment for life, in any case. (2) In case of non-payment of fine, as specified in clauses (a), (b), (c) and (d) of subsection (1), the accused shall undergo for further imprisonment for such terms as the Special Court may deem fit."

10. Whereas, section 11 of the Act of 2019 provides different punishments in view of the quantity of "Methamphetamine" which are reproduced below:- (a) Imprisonment upto seven (07) years and shall also be liable to fine not less than rupees three (03) lac, if the quantity of methamphetamine does not exceed 100 grams. (b) Imprisonment not less than ten (10) years and shall also be liable to fine not less than rupees five (05) lac, if the quantity of methamphetamine exceeding 100 grams, but does not exceed one (01) kilogram; and (d)(sic.) Death, imprisonment for life or imprisonment for a term which may extend upto fourteen (14) years and with a fine which may extend to rupees one (01) million, if the quantity of methamphetamine exceeds one 01 Kilogram. Provided that if the quantity of methamphetamine exceeds five (05) Kilograms, the punishment shall not be less than imprisonment for life in any case."

11. In order to clarify the anomaly in the above two provisions of the Act of 2019, the Khyber Pakhtunkliwa Control of Narcotic Substances (Second Amendment Act, 2020 was introduced. In section 9, subsection (1), clause (a), after the words "Psychotropic Substance", the words "except Methamphetamine" have been inserted and accordingly, the following proviso was added to clause (a) of section 9 subsection (1):- "Provided that offences relating to or involving methamphetamine, as provided in section 10, shall be dealt in accordance with section 11 of this Act." "(Psychotropic Substance", as mentioned in Schedule to the Act of 2019 also includes "amphetamine" at S.No.1 with its international non-proprietary name while "Methamphetamine" is mentioned against S.No.40 of the Schedule with its non-propriety or trival name as "ICE/Chalk/crystal". In view of the Second Amendment Act, 2020, "Methamphetamine" is completely distinguished from other psychotropic substance for the purpose of punishment and as per the added proviso. Sections 10 and 11 of the Act of 2019, only deals with the offences relating to "Methamphetamine" while cases of recovery of "Amphetamine" would fall within the ambit of section 9 of the Act of 2019.

12. In the instant case, as per FSL report Exh.PZ the samples were found as "Chars" and "Amphetamine". The appellant has already served the sentence for recovery of 1010 grams chars, whereas, for recovery of 755 grams amphetamine, his case falls within the ambit of section 9(b) of the Act of 2019. In this view of the matter, conviction of the appellant under section 11(a) is converted to 9(b) of the Act of 2019, and his sentence is modified from ten years rigorous imprisonment to fifteen months rigorous imprisonment and his sentence of fine is reduced from rupees five lacs to rupees one lac or in default thereof to undergo six months' simple imprisonment. Benefit of section 382-B, Cr.P.C. already extended to the appellant by the learned trial Court shall remain intact in his favour. JK/181/P Sentence modified.