2007 PLP 3021 (YLR)

Through this petition Mst. Fazeelat Bibi petitioner has sough post-arrest bail in case F.I.R. No. 862 registered at Police Station Tibbi City, Lahore on 1-12-2005 for an offence under section 6 read with section 9 of the Control of Narcotic Substances Act, 1997.

2. According to the prosecution the petitioner was apprehended by a police party and 'Bhang' weighing 10 kilograms had been recovered from the petitioner's possession. According to various dictionaries consulted by us 'Bhang' is known as `hemp' in English language and this is evident even from the Schedule appended with the Prohibition (Enforcement of Hadd) Order, 1979. In section 2(s) of the Control of Narcotic Substances Act, 1997 "narcotic drug" has been defined to mean "coca leaf, cannabis, heroin, opium, poppy straw and all manufactured drugs" and according to section 2(d)' (ii) of the same Act "cannabis (hemp)" meads the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which resin has not been extracted by whatever name they may be designated or known. This clearly establishes that when Bhang/hemp is referred to without specification of any particular part of the said punt and without the other details mentioned above the offence would be covered by the provisions of the Prohibition (Enforcement of Hadd) Order, 1979 and recovery of Bhang/hemp would attract the provisions of the Control of Narcotic Substances Act, 1997 only when the requirements of section 2(d) thereof are fulfilled. In the case in hand the F.I.R., the Memorandum of Recovery and the report of the Chemical Examiner do not specify as to whether the substance allegedly recovered from the petitioner's possession was the flowering or fruiting tops of the cannabis plant or not, as to whether the same excluded the seeds and leaves when not accompanied by the tops or not send as to whether resin had been extracted from the recovered substance or not. In these circumstances prima facie it is difficult for us to hold that the requirements of section 2(d) of the Control of Narcotic Substances Act, 1997, were fulfilled in the case in hand so as to at fact the said Act to the present case. Thus, we have no other option but to fall back upon the provisions of the Prohibition (Enforcement of Hadd) Order, 1979 vis-a-vis the allegation against the petitioner. An offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 carries a maximum sentence of two years' imprisonment. In this view of the matter we have felt persuaded to admit the petitioner to bail at this stage. Nothing is to be recovered from the petitioner's possession at this stage. The petitioner is a woman and by virtue of her gender she is entitled to a concessionary treatment in the matter of bail. This petition is, therefore, allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court. N.H.Q./F-5/L Bail allowed.