2003 P Cr (PLP)

S.21

Contravention of provisions of S.21 of Control of Narcotic Substances Act, 1997

Failure to conduct search in compliance with the provisions of S.21 of Control of Narcotic Substances Act, 1997, no doubt could result in release on bail and later on acquittal of accused and thereby could defeat the very purpose of the statute it was enacted for, but the Courts of law were bound to implement the statute otherwise it would amount to be more loyal than the king by importing what was not in the statute

If any anomaly was created through its strict interpretation the very purpose of the statute would be defeated-- Legislature though could well get it amended but so long as it was a part of the statute, it had to be interpreted as it was. Bahlol Khattak for Petitioner. Malik Akhtar Khan for the State. Date of hearing: 28th February, 2003. The petitioner who is charged in a case registered against him under sections 6, 7 and 9 of the CNSA, 1997, vide F.T.R. No.665 dated 15-10-2002, Police Station Akora, when failed to get the concession of bail from the lower forum asks therefor, by moving this Court.

2. The learned counsel appearing on behalf of the petitioner contended that the search and consequent recovery were made in contravention of the provisions of section 21 of the CNSA, therefore, this alone will entitle the petitioner to be released on bail. The learned counsel to support his contention placed reliance on the cases of Nasrullah v. The State PLD 2001 Pesh. 152 and Gharibullah v. The State 2002 PCr.LJ 677.

3. The learned counsel appearing on behalf of the State by placing reliance on the case of Mukhtar v. The State Criminal Miscellaneous No.504 of 2002 contended that the search made in contravention of the provisions contained in section 21 of the Act, will not per se justify the grant of bail when the petitioner is prima facie connected with the crime because such a strict interpretation of the statute tends to defeat the very purpose it was enacted for.

4. I have gone through the record and carefully considered the submissions of the learned counsel for the parties.

5. In the case of Nasrullah v. The State (supra) it was held by a Full Bench of this Court that where a search and consequent recovery were made m contravention of the provisions contained in section 21 of the CNSA even though the recovery was not convincingly disputed, the petitioner was entitled to be released on bail, therefore, I do not feel persuaded to decline bail by striking a discordant note with it particularly when 1 myself was the author of the judgment.

6. No doubt failure to conduct search in compliance with the provisions of section 21 of the CNSA may result in release and later on acquittal of the accused and thereby may defeat the very purpose of the statute it was enacted for but the Courts of law are bound to implement f the statute as it is without being more royalist than the monarch by importing what is not in the statute. If any anomaly is created through its strict interpretation or the very purpose of the statute is defeated, the Legislature may well get it amended. So long as it is a part of the statute, it has to be interpreted as it is.

7. For the reasons discussed above, this petition is allowed and the petitioner is directed to hoe released on bail, if he furnishes bail bonds in the sum of Rs.3,00,000 (Rs. Three lacs) with two sureties each in the like amount to the satisfaction of the learned trial Judge who is to ensure that the sureties are local reliable and men of means. H.B.T./778/P Bail granted.