2006 P Cr (PLP)

According to the contents of the F.I.R. No.385, dated 31-12-2005, Muhammad Aslam, A.S.-I., sent a complaint that he along with police officials, mentioned in the F.I.R., were present at Adda, Chhab Kalan when an informer stated that Zia-ur-Rehman (petitioner) is running a shop at Adda Wajhiawala and openly sell. A raiding party was constituted and the petitioner was apprehended. Gunny bags, lying outside the shop, were checked, when one jute bag and a small bag of the said commodity were recovered. Weight came to 60 Kgs. No permission was produced. One Kg. was separated and two parcels were prepared. A case under Articles 3/4 of Prohibition Order, 1979, was registered. The petitioner was arrested. Bail application filed by him has been dismissed by learned Additional Sessions Judge, Mianchannu, on 25-2-2006.

2. Learned counsel for the petitioner, with reference to the copy of Chemical Examiner's report (Annexure "H"), argues that the said does not fall within the meaning of an intoxicant, as defined in Prohibition (Enforcement of Hadd) Order, 1979. He relies on a minority opinion expressed in the case of Khair-ul-Rehman and others v. The State PLD 2005 Lah. 440.

3. Learned counsel for the State relies upon majority opinion expressed in said Full Bench judgment of this Court to oppose the bail application.

4. We have gone through the available records. We have already narrated above the contents of the F.I.R. What has been allegedly recovered from the shop of the petitioner is described as and a case under Articles 3/4 of the said Order, 1979, has been registered. To our mind, reference by both the parties to the said Full Bench judgment, is not at all relevant as their Lordships were considering the definition of opium as given in section 2(t) of the Control of Narcotic Substances Act, 1997.

5. Now the result' of Chemical Examination of the sample, sent to the Chemical Examiner, Government of the Punjab is as follows:-- "The above packet contains grinded/crumbled material of poppy leaves, stalks, seeds (small quantity), dirt (maximum quantity) with no poppy heads as such". Now Article 2(g) defines, an intoxicant to mean an article specified in the Schedule and this also includes intoxicating liquor and other articles or any substance which the Provincial Government may, by notification in the official Gazette, declare to be an intoxicant for the purposes of this order. Now para.4 of the said Schedule is as follows: "Opium and opium derivatives as defined .in the Dangerous Drugs Act, 1930." Section 2(c) of the Dangerous Drugs Act, 1930 defines Opium as follows:-- (c) "Opium" means- (i) poppy straw, that is to say, all parts of poppy plant (pappaver somniferum or any other species of papaver) after mowing, not being seeds, from which narcotics can be extracted; (ii) the spontaneously coagulated juice of Capsules of poppy which has not been submitted to any manipulations other than those necessary for packing and transport; (iii) any misture, with or without natural materials, of any of the above forms of opium; But does not include any preparation containing not more than 0.2% of morphine,"

6. Now considering the said result, delivered by the Chemical Examiner in this case, in absence of any finding that narcotics can be extracted from item examined by the said officer and further that it contains more than 0.2% morphine, it cannot be held, prima facie, that the same is an intoxicant within the meaning of Article 2 of the Prohibition (Enforcement of Hadd) Order, 1979.

7. Criminal miscellaneous accordingly is allowed and the petitioner is granted bail subject to his furnishing` bail bonds in the sum of Rs.2,00,000 with one surety, in the like amount to the satisfaction of learned trial Court. H.B.T./Z-17/L?????????????????????????????????????????????????????????????????????????? Bail granted.