1999 P Cr (PLP)

DR. MUNIR AHMAD MUGHAL, J.

This is a Criminal " Miscellaneous Application for bail after arrest invoking the jurisdiction of this Court under section 497, Cr.P.C. The petitioner is involved in case F.I.R. No.382 of 1997, dated 29-11-1997 under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, read with section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Seetal Mari Multan. Case against the petitioner is that 1500 grams of heroin was recovered from his possession.

2. Learned counsel for the petitioner has submitted that there is previous enmity of the petitioner with the police and more than one cases under different sections were registered against him and in all those cases he was granted bail by this Court and that the quantity recovered has not been got tested from the laboratory notified under section 34 of the Control of Narcotic Substances Act, 1997, and that where the recovery is the basis of conviction the provisions of section 103, Cr.P.C. were to be observed as mandatory provisions. When the learned counsel was confronted with the bar contained in section 51 of the Control of Narcotic Substances Act, 1997, he submitted that it was a sub-Constitutional enactment and it cannot come in the way of the powers of this Court available under the Constitution under Article 199 and the Code of Criminal Procedure under section 497.

3. Learned counsel for the State has opposed the bail application on the ground that insertion 9(c) of the Control of Narcotic Substances Act, 1997, death sentence is provided as the quantity recovered is 1500 grams of heroin as the quantity exceeds the limit specified in clause (b) of section 9, i.e. as it exceeds one kilogram The Investigating Officer was called to explain as to why offence under section 9(c) of the Control of Narcotic Substances Act, 1997, was not mentioned in the challan and he has submitted 'hat it has been mentioned.

4. We have given due consideration to the valuable arguments on both sides and have perused the record. Section 9 and section 51 of the Control of Narcotic Substances Act, 1997, are relevant for the disposal of this application which are reproduced as under:-- "

9. Punishment for contravention of sections 6, 7 and 8.

Whoever contravenes the provisions of sections 6, 7 or 8 shall be punishable with-- (a) imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug psychotropic substance or controlled substance is ten grains or less; (b) Imprisonment which may extend to seven years but shall not be less than three years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds ten grams but does not exceed: (i) one hundred grams in the case of heroin cocaine, opium derivative or coca derivative, with whatever name or composition; (ii) two hundred grams in the case of opium, coca leaf or psychotropic substance, with whatever name or composition; and (iii) one kilogram or equivalent, in case of any other narcotic drug or controlled substance not specified in sub-clauses (i) and (ii); and (c) death or imprisonment for life, and shall also be liable to fine which shall not be less than one million rupees, if the quantity of narcotic drug psychotropic substance or controlled substance exceeds the limits specified in clause (b)."

51. No bail to be granted in respect of certain offences.-- (1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable, with death. (2) In the case of offence punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount. A tentative assessment of the record shows that the quantity of heroin recovered was 1500 grams which exceeds 1000 grams and the case of the petitioner falls under section 9(c) of the Control of Narcotic Substances Act, 1997, for which maximum punishment prescribed is death and the minimum punishment prescribed is life imprisonment. Both the Code of Criminal Procedure, 1898 and the Control of Narcotic Substances Act, 1997, are Federal Statutes and it cannot be said that the bar contained in section 51 of the Control of Narcotic Substances Act, 1997, is redundant. It is a special law and it shall override the general law. So far as provisions of section 103, Cr.P.C. are concerned, section 25 of the Control of Narcotic Substances Act, 1997, provides an exception which reads as under: "

25. Mode of making searches and arrest.

The provisions of the Code of Criminal Procedure, 1898, except those of section 103, shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22, and 23 to all warrants issued and arrests and searches made under these sections. The Constitutional guarantee contained in Article 9 of the Constitution reads as under:-- "

9. Security of person.

No person shall be deprived of life or liberty save in accordance with law. This guarantee is subject to law, and the Control of Narcotic Substances Act, 1997, is a validly enacted law by the competent Legislature of Pakistan in accordance with the Constitution. We are of the considered opinion that the case of the petitioner comes within the mischief of the bar of section 51 of the Control of Narcotic Substances Act, 1997, as such this application is dismissed. N.H.Q./M-970/L ??????????? Bail refused.