1990 P Cr (PLP)

(iii) any mixture, with or without neutral materials, of any of the above forms of opium; but does not include any preparation containing not more than 0.2 per cent. of morphine: Section 2(f) of the Dangerous Drugs Act, 1930 again defines opium derivative as follows:

"(f) "Opium derivative" means-- (i) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the British Pharmacopoeia, whether in powder form or granulated or otherwise or mixed with neutral materials; (ii) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking, and the dross or other residue remaining after opium is smoked; (iii) morphine, that is, the principal alkaloid of opium having the chemical formula C17 H19NO3, and its salts; (iv) diacetylmorphine, that is, the alkaloid, also known as diamorphine or heroin, having the chemical formula C21H23 NO5 and its salts; (v) all preparations, officinal and non-officinal containing more than 0.2 per cent. of morphine, or containing any diacetylmorphine:"

10. Applicant Muhammad Qasim (Criminal Bail Application 167 of 1990) is charged for the offence under section. 9 of the Opium Act, 1878, which is punishable with imprisonment for a term which may extend to one year and is thus bailable. Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, which deals with import, export, transport manufacture or trafficking of opium is not attracted in his case. He was simply found in possession of 2-1/2 Kgs of contraband opium, an offence punishable under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, which reads as follows: - "

4. Owing or possessing intoxicant.

Whoever owns, possesses 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 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 with imprisonment which is not less than two years and with whipping not exceeding thirty stripes, and shall also be liable to fine.

11. The second proviso to Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, which has made the offence aggravated, however, speaks of possession of "raw opium", which has not been defined anywhere. The Dangerous Drugs Act, 1930, defines opium 'and `opium derivatives'. The Opium Act, 1878, defines `opium'. The West Pakistan Opium Rules, 1956, define "Pure Opium" and "Excise Opium". In Modi's Medical Jurisprudence and Toxicology, the opium is defined as the coagulated air dried latex juice obtained by incision of the unripe capsules of the while poppy, Papaver Somniferum. The opium is again defined in Dorland's Medical Dictionary as an air dried milky exudate obtained by incising the unripe capsules. This difficulty was even felt by the Federal Shariat Court in the case of Shah Nawaz and another v. The State, reported in PLD 1986 FSC 242, and following observations were made:-- "These definitions referred to here before are least helpful in finding out what is raw opium, the possession of which has been made an aggravated offence under second proviso to Article

4. None from the prosecution including the Chemical Examiner has averred that narcotic recovered from the appellant was raw opium. The counsel representing the State after consulting the officer in the Excise Department could not also give any plausible explanation about raw opium but he stated that all the opium other than the Excise opium is to be treated as raw opium which is not supported by any of the definitions of opium given m three different provisions of law dealing with the subject mentioned herebefore. To have the uncertainty set aside about what is raw opium, the possession of which has been made punishable under Article 4 of the Order ibid, the Government would be well-advised to have it defined and incorporated in the appropriate statute. In case raw opium is relatable to non-excise opium then the word `raw' is superfluous because after the enforcement of Prohibition (Enforcement of Hadd) Order, 1979, the possession of any type of opium whether excise or non-excise is culpable under the Order ibid. In the present case as well as in many other cases that we have come across, the opinion of the Chemical Examiner is to the effect that the narcotic recovered is non-excise opium. Even the expert appears to be ignorant that after the promulgation of Prohibition (Enforcement of Hadd) Order, 1979, possession of all types of opium is prohibited. Looking at the matter from another angle if we take the ordinary meaning of "raw" as defined by Chambers Twentieth Century Dictionary being" not altered from its natural state; not cooked or dressed; unwrought; not prepared; or manufactured; not refined; not corrected; not mixed;" in that case raw opium would cover items (i) and (ii) of clause E of section 2 of the Dangerous Drugs Act, 1930 referred to here before and would not include opium prepared for smoking or oral consumption which is not in consonance with the spirits of Hadd Order ibid, that provides for enhanced punishment with imprisonment for life for the possession of opium in the quantity of one kilogram and above. One is not to go deep to rind out the anomaly that if the opium in raw state is one kilogram or above then the offendcr''6n be punished with imprisonment for life but if he is found in possession of the same quantity of prepared opium, more potent, then he can only be awarded the sentence of two years' imprisonment. Dangerous Drugs Act, 1951 of United Kingdom in section 4(2) (a) has defined raw opium. The expression "raw opium" includes powdered or granulated opium but does not include medicinal opium. Words and Phrases Legally Defined by John B. Saunders also describes "raw opium" as powdered or granulated opium and not medicinal opium. All this exercise has been done to show that `raw opium' has been defined in the statute applicable to the United Kingdom.

12. The intention of Legislature in using the word `raw opium' in second proviso to Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, is thus not clear. If the Legislature had in mind the definition of opium as given in section 3(ii) of the Opium Act, 1878, it could have been made it clear. Since there is nothing on record to show that the opium which applicant Muhammad Qasim had allegedly possessed was `raw opium', it is obvious that his case does not fall within the mischief of second proviso to Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and he is entitled to the grant of bail. Accordingly bail is allowed to applicant Muhammad Qasim in the sum of Rs.50,000 with P.R. bond in the like amount to the satisfaction of Sessions Judge, Jacobabad.

13. I now proceed to examine the case against applicant Abdullah Khan (Criminal Bail Application No.234 of 1990). His case prima facie falls under IF Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, which lays down as under:-- "3. (1) Prohibition of manufacture, etc. of intoxicants. Subject to the provision of clause (2) whoever:-- (a) Imports, exports, transports, manufactures or processes any intoxicant; or (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. (2) Whoever:-- (i) imports, exports, transports, manufactures, or traffics in, opium or coca leaf or opium of coca derivatives; or (ii) finances the import, export, transport, manufacture, or trafficking of, opium or coca leaf 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, This Article speaks of transporting, `opium', and not, `raw opium', which is an offence punishable with imprisonment for life. The opium was found concealed in secret chamber. Besides contraband opium weighing 5 Kgs., there was recovery of 13 country-made pistols from the bus of which the applicant was driver. His possession with other members of staff was obviously joint and it is too premature a stage to hold even tentatively that the applicant had no knowledge of the concealment of opium in the bus. No private Mashir could be procured at that odd hours at that spot. The case of applicant Abdullah Khan falls within the prohibitory clause of section 497, Cr.P.C. and the learned counsel representing him, in spite of his strenuous arguments was not able to bring it out of the prohibitory clause.

14. No case for bail is made out and the application moved on behalf of applicant Abdullah Khan is dismissed. N.H.Q./M-1198/K Order accordingly