2016 P Cr (PLP)

MUHAMMAD ALAM, J.

This is a bail petition for grant of bail facility to the petitioner in connection with occurrence reported through FIR No. 109/2015 of Police Station Jutial, Gilgit.

2. Petitioner, who is involved for the offence of section 9(c), C.N.S.A., 1997, booked through FIR No. 109/2015 dated 19-11-2015 of Police Station Jutial, seeks his release on bail through this petition.

3. I have given this single decision in connection with this petition and Cr. Misc. No. 10/16. Both, this petition and Cr. Misc. 10/16 are regarding release of petitioners on bail in connection with occurrence reported through FIR No. 109/2015 of Police Station Jutial. The only difference between the role in connection with commission of offence of both the petitioners of the two petitions is that, the petitioner of Cr. Misc. No. 10/16 sold the narcotics of occurrence to the petitioner of this petition. So, hereunder petitioner means petitioners of both the said petitions and petition means both the said petitions. I have further directed office for placing copy of this order on Cr. Misc. No. 10/16 also.

4. The circumstances of the occurrence, disclosed in the FIR are that, police of Police Station Jutial, received spy information about the occurrence and stopped the NCP vehicle DMR-01-510 and checked the same. Police recovered a briefcase from the said vehicle and recovered the heroin powder weighing 2 kilograms. The so recovered briefcase was ownership of the petitioner (Haider). Police of Police Station Jutial chalked FIR for the offence of 9(c), Control of Narcotic Substances Act, 1997, hereunder referred as C.N.S.A.

5. I have heard learned counsel for petitioner and have gone through the material available on file. Learned DAG also wanted to advance arguments, but I specifically questioned the learned DAG about the implementation of order dated 04/04/2015 of this Court passed in Cr. Misc. No. 03/15 and order dated 08/08/2007 of the Hon'ble Supreme Appellate Court, that the said Court passed in Cr. Misc. 09/07. It is not disputed that the order dated 04/04/2015 of this Court, passed in Cr. Misc. No. 03/2015 has neither been acted upon nor the Hon'ble Supreme Appellate Court has upset the same. For ready reference I reproduce the operative parts of the said two judgments hereunder:- Order dated 08/08/2007 of Supreme Appellate Court passed in Cr. Misc. No. 09/07. "The punishment under section 3 of Enforcement of Hadd Order IV of 1997 .............................................................. ...... .......................................................................... .......................................................................... ........... . So far section 9(c) of C.N.S.A. is concerned, the Police has no powers to insert provisions of Control of Narcotic Substances Act nor they can investigate or put in challan before the trial Court." Order dated 04/04/2015 of this Court passed in Cr. Misc. No.03/15. "

5. In my opinion in the case in hand as the quantity of the Charas narcotics allegedly recovered from the petitioner is a heavy quantity and section 9(c) of the Act is the appropriate law that attracts to the alleged offence. The police of PS, Skardu had no power at all under the Act to chalk the FIR or investigate the case. Police of PS, Skardu very malafidely exercised power of Anti Narcotics force and submitted incomplete challan under section 9(c) of Act first and then final challan under Articles 3/4 of the Order. Very evidently to give benefit to the petitioner/accused. A very important conclusion is that the SHO and I.O. knew that he had no powers to submit incomplete challan under section 9(c) of Act. So the SHO or I.O. or both, if different persons, malafidely foul played by first chalking FIR, then submitted incomplete challan under section 9(c) of Act and then lastly transforming the offence from section 9(c) to under section 3/4 of Order. It is really playing with the system by the SHO and I.O." "

6. In these circumstances instead of taking up the two laws for conducting the investigation of the case, Moreover the IGP as well as the Chief Secretary should take up the question of existence of application of either of above two parallel laws in GB. Till then the investigation of the case be re-opened by the police of Anti-Narcotics Force and the FIR chalked by the police of PS, Skardu be treated as an FIR chalked by Anti Narcotics Force. The IGP and CS should issue appropriate directions to all concerned police officials for application of either of the two laws in different occurrences of narcotics trafficking in GB. Office to send copy of this order to IGP for implementation and submission of compliance report to the Registrar of Chief Court Gilgit- Baltistan. File be consigned to record."

6. Neither we are in receipt of any compliance report in the light of above reproduced directives of this Court, nor the normal Police Stations of Police of GB concerned are abstaining from repeating the chalking of FIRs regarding the occurrences, wherein the provisions of CNSA are clearly attracting. In the case in hand even normal Police Station has chalked FIR, charging the petitioner and his co-accused for the offence of section 9(c) of C.N.S.A. It is not disputed that the law of CNSA is a special law and provides special mechanism for investigation of the occurrences falling under the said law. So, this attitude of the normal Police Stations is patently, at least in utter violation of above referred case law.

7. I have gone through the decision dated 04/01/2016 of the learned Sessions Court Gilgit, who has passed the said order as Special Judge CNSA/Vacation Judge, Gilgit, wherein the learned trial Court has remarked that the chalking of FIR by the normal Police Station is indemnified under section 156(2), Cr.P.C. and is curable under section 537, Cr.P.C. I have gone through the so referred law, which neither provides for any indemnification, nor provides for any curing of such actions of the police of normal Police Stations. Therefore, the said remarks of the said trial Court are, in my opinion, result of miss-appreciation of law, therefore are wrong. The said remarks are obviously against the above reproduced case-law.

8. I have, therefore, denied to hear the learned DAG unless and until the above referred law is complied by the authorities concerned, or otherwise, the above referred case law is reversed or varied by any competent forum.

9. In sequel of above discussion, I direct for re-opening of the investigation of the case by Anti-Narcotics Force, treating the FIR chalked by Anti Narcotics Force. Learned trial Court is directed for returning the challan, if the same is presented by the normal police. Copies of this order be sent to the learned trial Court Gilgit and office is directed to send copy of this order also to IGP and Chief Secretary Gilgit-Baltistan, with reference to the remarks of this Court, reproduced supra.

10. Petition dismissed. File. HBT/2/GB Order accordingly.