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Control Of Narcotic Substances Act, 1997

CONTENTS

 
Preamble
 
Preamble  
CHAPTER I
 
PRELIMINARY
 
1. Short title, extent and commencement  
2. Definitions  
3. Calculation of percentages in liquid preparations  
CHAPTER II
 
PROHIBITION AND PUNISHMENT
 
4. Prohibition of cultivation of narcotic plants  
5. Punishment for contravention of section 4  
6. Prohibition of possession of narcotic drugs etc  
7. Prohibition of import or export of narcotic drugs, etc  
8. Prohibition on trafficking or financing the trafficking of narcotic drugs etc  
9. Punishment for contravention of sections 6, 7 and 8  
10. Prohibition on owning, operating premises or machinery for manufacture of narcotic drugs, etc  
11. Punishment for contravention of Section 10  
12. Prohibition of acquisition and possession of assets derived from narcotic offences  
13. Punishment for contravention of section 12  
14. Prohibition on aiding, abetment or association in narcotic offences  
15. Punishment for contravention of Section 14  
16. Punishment for offence for which no punishment is provided  
17. Obstructions to officers  
18. Limit of fine, etc  
19. Forfeiture of assets of an offender  
CHAPTER III
 
SEARCH AND INVESTIGATION
 
20. Power to issue warrants  
21. Power of entry, search, seizure and arrest without warrant  
22. Power to seizure and arrest in public places  
23. Power to stop and search conveyance  
24. Undercover and controlled delivery operations  
25. Mode of making searches and arrest  
26. Punishment for vexatious entry, search, seizure or arrest  
27. Disposal of persons arrested and articles seized  
28. Powers to invest officers of law enforcement agencies with powers of an officer-in-charge of a police station  
29. Presumption from possession of illicit articles  
30. Presumption as to documents in certain cases  
31. Power to call for information  
32. Articles connected with narcotics  
33. Procedure for making confiscation  
34. Federal Narcotics Testing laboratory, etc  
35. Government Analyst  
CHAPTER IV
 
FREEZING AND FORFEITURE OF ASSETS
 
37. Freezing of assets, etc  
38. Tracing of assets  
39. Order for forfeiture of assets  
40. Forfeiture of assets of person convicted abroad  
41. Prohibition of alienation of freezed property  
42. Punishment for acquiring property in relation to which proceedings have been taken under this Act  
43. Power to take possession  
44. Management of assets frozen or forfeited under the Act.  
CHAPTER V
 
SPECIAL COURTS
 
45. Jurisdiction to try offences  
46. Establishment of Special Courts  
47. Application of the Code of Criminal Procedure, 1898  
48. Appeal  
49. Transfer of cases  
50. Special Prosecutor  
51. No bail to be granted in respect of certain offences  
CHAPTER VI
 
TREATMENT AND REHABILITATION OF ADDICTS
 
52. Registration of addicts  
53. Powers of the Government to establish centers for treatment of addicts  
CHAPTER VII
 
NATIONAL FUND FOR CONTROL OF DRUG ABUSE
 
54. National fund for control of drug abuse  
55. Annual Report of the activities financed out of the Fund.-  
CHAPTER VIII
 
INTERNATIONAL CO-OPERATION
 
56. Authority to make and act on mutual legal assistance requests  
57. Mutual legal assistance requests by Pakistan  
58. Foreign requests for assistance  
59. Foreign requests for an evidence-gathering order or a search warrant  
60. Foreign requests for assistance from detained persons  
61. Foreign persons in Pakistan in response to a Pakistan request  
62. Foreign requests for Pakistan restraining orders  
63. Requests for enforcement of foreign confiscation or restraining orders  
64. Requests to recover foreign fines  
65. Sharing forfeited property with foreign States  
66. Extradition  
CHAPTER IX
 
GENERAL
 
67. Reporting of suspicious financial transactions  
68. Presumption to the assets acquired through dealing in narcotics  
69. Departments to render assistance to the Special Courts, etc.  
70. Notice or order not to be invalid for error in description  
71. Delegation  
72. Application of the Customs Act, 1969  
73. Saving of provincial and special laws  
74. Application of other laws  
75. Indemnity  
76. Ordinance to override other laws  
77. Power to made rules  
78. Repeal and saving  
SCHEDULE
 
PSYCHOTROPIC SUBSTANCES  
 

 

Preamble

 

ACT NO. XXV OF 1997

 

11th July, 1997]

            An Act to consolidate and amend the laws

relating to narcotic drugs and psychotropic substances

 

The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on the 7th July, 1997 is hereby published for general information:-

WHEREAS It is expedient to consolidate and amend the laws relating to narcotic drugs, psychotropic substances, and control the production, processing and trafficking of such drugs and substances;

            AND WHEREAS it is expedient to regulate the treatment and rehabilitation of narcotic addicts and for matters connected therewith and incidental thereto;

It is hereby enacted as follows: —

CHAPTER I
 
PRELIMINARY
1. Short title, extent and commencement
 

(1) This Act may be called the control of narcotic Substances Act, 1997.

(2)               It extends to the whole of Pakistan.

(3)               It shall come into force at once

   2. Definitions
 

In this Act, unless there is anything repugnant in the subject or context,—

(a)       “addict” means a person physically or mentally dependent on any narcotic drug or psychotropic substance or a person who habitually uses narcotic drugs or psychotropic substances;

(b)       “assets” means any property owned, controlled or belonging to an accused, whether directly or indirectly, or in the name of his spouse or relatives or associates whether within or without Pakistan for which they cannot reasonably account;

(c)               “associate”, in relation to an accused, means—

(i)                 any individual who is, or has, at the relevant time been ordinarily residing in the residential premises, including out-houses and servant-quarters of an accused;

(ii)               any individual who, is or has, at the relevant time been managing the affairs or keeping the accounts of an accused;

(iii)             any association of persons, body of individuals, firm or private limited company within the meaning of companies Ordinance, 1984 (XLVII of 1984), of which an accused is, or has, at the relevant time been a member, partner or director;

(iv)             any individual who is, or has been, at the relevant time a member, partner or director of any association of persons, body of individuals, firm or a private limited company referred to in sub-clause (iii);

(v)               a trustee of any trust created by an accused; or

(vi)             where the Special Court, for reasons to be recorded, considers that any property of an accused is held on his behalf by any other person, such other person;

(d)       “cannabis (hemp)” means—

(i)                 cannabis resin (charas) that is, the separated resin, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish.

(ii)               The flowering or fruiting tops of the cannabis plant (excluding the seed and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated or known; and

(iii)             Any mixture with or without neutral materials of any of the above forms of cannabis or any drink prepared therefrom;

(e)        “cannabis plant” means any plant of the genus cannabis;

(f)        “coca bush” means the plant of any species of the genus Erythroxylon;

(g)               “coca derivative” means—

(i)         crude cocaine, that is, any extract of coca leaf which can be used, directly or indirectly, for the manufacture or production of cocaine;

(ii)               ecgonine, that is, leavoecgonine having the chemical formula C9H15No3H2O and all chemical derivatives of leavo-ecgonine including benzoylecgonice from which it can be recovered;

(iii)             cocaine, that is, methyl-benzoyl- leave-ecgonine having the chemical formula C17H21Noand its salts; and

(iv)             all preparations containing more than 0.1 per cent fo cocaine;

(h)               “coca leaf” means:-

(i)         the leaf of the coca bush except a leaf from which all ecgonine, cocaine or any other ecgonine alkaloids have been removed;

(ii)               any mixture thereof, with or without neutral material, but does not include any preparation containing not more than 0.1 per cent of cocaine;

(j)         “controlled delivery” means the technique of allowing illicit or suspect consignments of narcotic drugs, psychotropic substances or chemical precursors to pass out of, through or into Pakistan, with the knowledge and under the supervision of the Federal Government with a view to identifying persons involved in the commission of offences cognizable under this Act;

(k)        “controlled substance” means any substance which may be used for the production or manufacture of narcotic drugs or psychotropic substance;

(l)         “conveyance” means a conveyance of any description whatsoever and includes, any aircraft, vehicle, vessel, railways or animal;

(m)      “Director-General” means Director-General of the Anti-Narcotics Force or any other officer appointed by the Federal Government to perform the duties and functions of the Director-General under this Act;

(n)       “foreign court” means a court of competent jurisdiction of a foreign country recognised by the Federal Government from tike to time;

(o)        “freezing” means prohibiting by an order made by the Special Court or an officer authorised under this Act the transfer, conversion, disposal or movement of any assets and includes the holding, controlling, assuming custody or managing any assets in pursuance of such order and, in the case of assets which are perishable the disposal thereof;

(p)       “manufacture”, in relation to narcotic drugs or psychotropic substances, includes:-

(i)         all processes by which such drugs or substances may be obtained;

(ii)        refining of such drugs or substances;

(iii)             transformation of such drugs or substances; and

(iv)             making or preparing such drugs or substances;

(q)               “manufactured drug” includes:-

(i)         all coca derivatives, medicinal hemp, opium derivatives, cannabis in any form and any mixture of stalks and flowering or fruiting tops of the Indian hemp plant (cannabis sativa L.) Acetic anhydride; and

(ii)        any other narcotic substance which the Federal government may, by notification in the official Gazette made in pursuance of recommendations of any International Convention or otherwise, declare to be a manufactured drug;

(r)                “medicinal hemp” means any extract or tincture of hemp;

(s)                “narcotic drug” means coca leaf, cannabis, heroin, opium, poppy straw and all manufactured drugs;

(t)                 “opium” means:-

(i)         poppy straw, that is to say, all parts of the poppy plant (papaver somniferum or any other species of Papaver) after mowing, other than the seeds,

(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; and

(iii)       any mixture, with or without natural materials, of any of the above forms of opium, but does not includes any preparation containing not more than 0.2 per cent of morphine;

(u)               “opium derivative” includes:-

(i)         medicinal opium, that is, opium which has undergone the process necessary to adapt it for medicinal use;

(ii)        prepared opium, that is, opium which has undergone the process necessary to 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 C17H19NO3 and its salts;

(iv)       diacetylmorphine, that is, the semi synthetic substance, also known as diamorphine or heroin, having the chemical formula C21H23NO5 and its salts; and

(v)        all preparations containing more than 0.2 per cent of morphine, or containing any diacetylmorphine;

(w)      “poppy straw” means all the parts, except the seeds, of the opium poppy after mowing;

(x)        “Poppy straw concentrate” means the material obtained after the poppy straw has been subjected to a process for the concentration of its alkaloids;

(y)        “Prescribed” means prescribed by rules made under this Act;

(z)        “Property” includes:-

(i)         all forms of property, whether corporeal or incorporeal, moveable or immovable, tangible or intangible, real estate or personal property of every description;

(ii)        property used to commit, or to abet the commission of, an offence punishable under this Act;

(iii)       all kinds of shares or interest in an corporate body, company, firm, business concern, society or fund; and

(iv)       all documents of title to land, goods or property, wherever situated, money or valuable security issued by the Government;

(Za)     “psychotropic substance” means the substances, specified in te Schedule to this Act and such substances as the Federal Government may, by notification in the official Gazette, declare to be a psychotropic substance;

(Zb)     “relative”, in relation to an accused, means the spouse or any lineal descendant of the empowered to exercise the powers of the Special Court under this act; and

(Zc)     “special Court” means the Special Court established under section 46 or any other Court empowered to exercise the powers of the Special Court under this Act; and

(Zd)     “tracing” means the finding out the true nature, source, disposition, movement or ownership of assets an includes determining the movement or conversion of assets by any means, and “trace” shall be construed accordingly.

3. Calculation of percentages in liquid preparations
 

            The Federal Government may make rules prescribing the methods by which percentages in the case of liquid preparations shall be calculated for the purposes of clauses (g), (h), (t), and (u) of Section 2:

            Provided that, unless and until such rules are made, such percentages shall be calculated on the basis that a preparation containing one per cent of a substance means a preparation in which one gram of the substance, if a solid, or one milliliter of the substance, if a liquid, is contained in every one hundred milliliters of the preparation, and so in proportion for any greater or less percentage.

CHAPTER II
 
PROHIBITION AND PUNISHMENT
 

    4. Prohibition of cultivation of narcotic plants
 

No one shall cultivate any cannabis plant, coca bush or opium poppy, or gather any portion of a cannabis plant, coca bush or opium poppy:

            Provided that the Federal Government or a Provincial Government authorised by the Federal Government may, subject to such conditions as it may prescribe, permit under a licence cultivation or gathering of any such narcotic plant or any portion thereof exclusively for medical, scientific or industrial purposes.

 

5. Punishment for contravention of section 4
 

             Whoever contravenes the provisions of section 4 shall be punishable with imprisonment which may extend to seven years, or with fine, or with both.

    6. Prohibition of possession of narcotic drugs etc
 

            No one shall produce, manufacture, extract, prepare, possess, offer of sale, sell, purchase, distribute, deliver on any terms whatsoever, except for medical, scientific or industrial purposes in the manner and subject tot such conditions as may be specified by or under this Act or nay other law for the time being in force.

Court Decisions

            Appreciation of evidence :– Conviction of accused under S, 6 control of Narcotic substances Act, 1997 was not legal as same was not a penal clause whereas punishment for contravention of said section was under S. 9 of the said Act. judgment and sentence awarded to accused was set aside and case was remanded to be decided afresh after hearing parties and by writing a proper judgment in accordance with law. 2000 P.Cr.L.J 472

All three accused were real brothers inter se and it would hardly appear to a prudent mind that all three of them were taking away huge quantity of Charge in their hands in busy morning hours of the day-Private citizen who was made mushir, was not examined and was held back and instead other police official was examined and no explanation was given by prosecution witness-Chemical Examiner’s Report had shown that samples were sent on two different dates after more than fifteen days of alleged recovery-Prosecution evidence, thus, could not be termed as truthful and free from doubt-Prosecution having failed to prove its case beyond any shadow of reasonable, doubt, conviction and sentence awarded to accused by trial court were set aside. 2000 P.Cr.L.J 179

Charge framed in the case was bad in law was “Bhang” allegedly recovered from the accused did not fall within the definition of “Hemp” contained in S. 2(D)(ii) of the Control of Narcotics Substances Act, 1997-FIR was silent about the weighing and sealing of the recovered material at the spot-Mashirs were the subordinates of the complainant-Prosecution evidence suffered from material discrepancies which had been ignored by the Trial Court-Accused was acquitted in circumstances. 2000 P.Cr.L.J 760

Plea of double jeopardy-Trial of accused under Control of Narcotic substances Act, 1997 after their trial under the Customs Act, 1969-Validity-point in issue was as to whether a person who had been tried by the Special judge, Customs and either acquitted or convicted for smuggling or being in possession of narcotics could be tried for the second time by the special judge under the Control of Narcotics being one and the same, the Constitution, S. 26 of the General Clauses Act, 1897 and S. 403 of Criminal Procedure code, 1898-Case pending against the accused were quashed accordingly. 2000 P.Cr.L.J 1002

            Burden of proof-Prosecution is duty bound to prove its case beyond any reasonable doubt and any single and slightest doubt created in the case must go to the accused which is sufficient to discredit the prosecution story and entitle the accused

  7. Prohibition of import or export of narcotic drugs, etc
 

            (1) No one shall:-

            (a)        import into Pakistan;

            (b)        export form Pakistan;

            (c)        transport within Pakistan; or

            (d)       transship;

            any narcotic drug, psychotropic substance or controlled substance, save in accordance with rules made under sub-section (2) and in accordance with the conditions of any licence, permit or authorization for that purpose which may be required to be obtained under those rules.

            (2)        The Federal Government may make rules permitting and regulating the import into and export form Pakistan, transport within Pakistan and transshipment of narcotic drugs, psychotropic substances or controlled substances, and such rules may prescribe the ports or places at which any kind fo narcotic drug, psychotropic substance or controlled substance may be imported, exported, transported within Pakistan or transshipped, the form and conditions of licence, permit or authorities by which such licences, permits or authorization may be granted, the fees that may be charged therefor, any other matter required to have effective control of the Federal Government over such import, export, transportation and transshipment

8. Prohibition on trafficking or financing the trafficking of narcotic drugs etc
 

            No one shall:-

(a)        organize, manage, traffic in, or finance the import, transport, manufacturing or trafficking of, narcotic drugs, psychotropic substances or controlled substances; or

(b)        use violence or arms for committing or attempt to commit an offence punishable under this Act.

Court Decisions

Neither any recovery was effected from petitioner nor there is any evidence that he procured heroin nor there is any evidence to indicate that he passed on heroin to his co-accused-petitioner is in custody since 27/5/1997 and is not required for purpose of further investigation-In these circumstances this application is allowed and petitioner is allowed bail provided he furnishes bail bonds in sum of Rs. One Lac with two sureties each in like amount to satisfaction of Trial Court .1999 P.Cr.L.J 348

    9. Punishment for contravention of sections 6, 7 and 8
 

Whoever contravenes the provisions of Section 6, 7 or 8 shall be punishable with:-

(a)        imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less;

(b)        imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram;

(c)        death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b):

Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life.

Court Decisions

            Appreciation of evidence-Hujra wherefrom contraband charas had allegedly been recovered was a joint one belonging to all three brothers of accused and same was accessible to every body-Contraband had been recovered under a double bed lying on the earth from a room which was situated in a joint Hujra belonging to all three brothers-Investigating officer had stated that on the same day a case of narcotics had also been registered against one brother of the accused-contraband had also been registered against one brother of the accused-contraband had not been sent to the laboratory on the same day, but was sent after one day of its alleged recovery-Accused having been allegedly previous convict, it was bounded duty of prosecution to have followed S. 221, Cr.P.C. While framing charge, but that had not been done in accordance with law-No certified copy of previous judgment or F.I.R. had been placed on record to prove previous conviction of accused-Prosecution case in circumstances being highly doubtful, benefit of same must go to accused-Conviction and sentence recorded against the accused by Trial Court were set aside and accused was acquitted of the charge. 2004 M L D 290

            Prosecution evidence was unanimous and satisfactory-Recover of 2200 grams of “Charas” from the possession of accused was proved-Technicalities and minor contradictions in evidence in such cases were to be ignored and the court had to consider the entire material on record as a whole-Recovered “Charas” being in the form of strips, the recovery official was duty bound to take out sample from each and every strip for sending the dame to the chemical Examiner which was not done and the accused thus would be liable for being in possession only of 200 grams of “charas” sent to Chemical Examiner whose report in that regard was positive-Conviction of accused under S.9(c) of the Control of Narcotic Substances Act,  1997 was altered to S.9(b) of the said Act in circumstances and this sentence was substantially reduced accordingly. PLD 2003 Kar. 230

            According to the report of Chemical examiner only one parcel containing heroin weighing three grams had been received in his office out of eight samples-Even if the recovery of the narcotics was taken to be proved it was not known that the said particular sample out of the eight samples was recovered from which of the two accused ladies-Benefit of such doubt was consequently extended to both the accused and they were acquitted accordingly. PLD 2003 Pesh. 128

            Accused was only sitting in the truck as a cleaner at the relevant time-Prosecution had failed to prove that the accused had knowledge of the narcotics concealed in the secret cavities of the truck-Accused was acquitted in circumstances. Investigating officer had only separated sample for chemical analysis from one packet out of the total lot of 32 packets recovered from the truck-Remaining heroin could not be produced by the prosecution before the court at the time of trial as the same had allegedly been destroyed-Culpability of accused, in circumstances, could only be treated with regard to only one packet from which the sample was take which contained one Kg. Heroin-Conviction of accused was consequently altered from S. 9(c) to S. 9(b) of the Control of Narcotic substances Act, 1997, and his sentence of imprisonment for life was reduced to six years’ R. I. With reduction in fine. PLD 2003 Pesh 130

            Accused was proceeded against for having in his possession considerable quantity of heroin-prosecution witnesses were cross- examination at length, but neither any motive nor false involvement of accused was suggested to them and also nobody was brought on record to suggest that that prosecution witnesses were inimical towards accused-Case against accused which was to be investigated by police officer not below the rank of sub – Inspector of police though was investigated by Assistant sub-Inspector of police, but accused could not indicate any prejudice caused to him by said investigation-Accused had contended that he would be satisfied if sentence awarded to him by Trial court was reduced instead of going into merits of case-Counsel for prosecution hiving conceded to request of accused, High court upholding conviction of accused, reduced sentence to period already undergone by him. 1999 P.Cr.L.J. 1852

            Lady accused lady  accused could possible carry ten Kilograms of ’’charas on her body  for monetary considerations  or   otherwise – case being one of search of accused and not of search of a dwelling house  or a closed premises  association  of  two  or more respected persons of the  locality was not  remade  and the  Provision of  S.103’ cr.pc. were not attracted in the case ‘long interval between the occurrence and  the court  proceeding  might be  a case  for  discrepancies in the  prosecutions  evidence,, but the same did not  militate against the material fact of recovery of charas; from the possession  of accused on the appointed  date ;time and palace-delay in receipt of the parcel in the office of  chemical  examiner for what ever reasons was neither fatal to the prosecution case, nor the same had reflected adversely on the bona fides of the investigation-Defence evidence did not have the impact of negating the prosecution evidence-Conviction and sentence for accused wee maintained in circumstances. 2000 P.Cr.L.J 755

Recovery of  Charas weighing 980 grams from the possession of accused at the time of his arrest and search was proved by consistent prosecution evidence-Accused being a stranger to witnesses, police officials deposing against him could not be said to be not independent witnesses and his false implication in the case could not independent witnesses and his false implication in the case could not be possibly inferred-Accused, however, without challenging his conviction had prayed for only reduction in his sentence – Accused had no previous history of dealing in narcotics and had spent a total period of two years and five months in jail facing agony of trial Sentence of seven years’ R.I awarded to accused by Trial Court was reduced to imprisonment already undergone by him in circumstances Sentence of fine was also substantially reduced. 2000 P.Cr.L.J 452

Accused were found traveling in vehicle from which huge quantity of charas was recovered at the relevant time-Recovery of Charas stood proved from statements of prosecution witnesses which statements remained unshattered in lengthy cross-examination -Accused had failed to adduce any evidence to show that prosecution witnesses had any enmity against them and accused had also failed to produce any evidence in their defence-Prosecution, In circumstances, had succeeded in establishing its case against accused beyond any shadow of doubt Services of accused having been acquired by real culprits as carriers only, sentence awarded to them was reduced accordingly, 2000 P.Cr.L.J 1536

Prosecution led no evidence in support of its case and relied upon S. 26, Control of Narcotic Substances Ordinance, 1996 to maintain that it was the duty of accused to demolish the case of prosecution-Trial Court convicted accused as he did not lead any evidence to disprove recoveries allegedly effected from him-primary duty of prosecution was to prove its case beyond reasonable doubt and burden of prosecution would not be displaced under the presumption embodied in S. 26, Control of Narcotic Substances Ordinance, 1996 which lays down that once prosecution had led evidence in support of its case, it was then that accused would be required to disprove the same 26, Control of Narcotics Substance Act, 1996 had not absolved prosecution of its duty to prove its case beyond doubt-Conviction and sentence awarded to accused by Trial Court were set aside and case was remanded to decided the same afresh accordingly. 2000 P.Cr.L.J 858

Investigation officer despite having prior information about the accused being busy in sale of narcotics had not tried to procure the presence of two respectable persons of the locality so as to ensure reliable search as envisaged under S. 103, Cr. P. C.  -Prosecution had, thus, accused -Accused was acquitted in circumstances. 1999 P.Cr.L.J 1546

Bail – Offences with which the accused was charged did not fall within the prohibitory clause of S.497(1), Cr. P. C. . – Accused had remained in jail for about one year and the case had not proceeded so far and even the charge had not been framed – Record did not show that the accused was likely to abscond, tamper with prosecution evidence or repeat the offence after his release on bail – Accused was not a previous convict – Delay in receipt of Chemical Examiner's Report of the contraband by itself was not a bar to the grant of bail when reasonable grounds exited for believing that the accused was not connected with the commission of the offence – Non-mention by the counsel of accused while filing bail application before High Court about filing of another application for bail before the Trial Court, would not itself be a ground to penalize the accused for the fault committed by his counsel in case the accused had been found entitled to grant of bail – Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused – Allegations against accused, thus, needed further inquiry – Petition for leave to appeal was converted into appeal and allowed in circumstances and interim bail already granted to accused was confirmed accordingly. PLD 2002 S.C. 590

Benefit of doubt-Narcotics, Possession and recovery of -In criminal cases burden of proving its case rests on the prosecution which is duty bound to prove its case, against the accused, beyond reasonable doubt-Then duty does not change or vary even in a case in which no defence plea is taken by the accused-Defence plea is always to be considered in juxtaposition with the prosecution case, with the final analysis, if defence plea is proved or accepted then the prosecution case would stand discredited-In the present case the defence has been able to put a doubt to the prosecution case and the prosecution has not been able to establish the exclusive possession of the seized goods not the recovery in view of material contradiction between the statements of police personnel-Prosecution has failed to establish their case against the appellant beyond any reasonable doubt-Appeal allowed. 2000 PLR (Qta) 294

Decision of criminal case on basis of oath‑‑‑Trial Court made effort to decide case on special oath of complainant/Assistant Sub‑Inspector with respect to alleged recovery of heroin from possession of accused‑‑‑Initially accused agreed but, later on, resiled‑‑‑Such working of Trial Court could not be approved in view of mandatory provisions contained under Art. 163 of Qanun‑e‑Shahadat, 1984 according to which criminal case could not be decided on special oath‑‑‑Trial Court to refrain from deciding criminal cases on oath. 1998 P Cr. L J 2008

Joinder Of Trial :– Neither Investigating Agency has applied S. 34 nor the Trial Court has framed the charge in accordance with law nor any evidence had come on record that appellants had acted in union as to make them jointly responsible-Different kinds of narcotics have been recovered from the appellants individually,  which  cannot suggest joint possession and common intention-Provisions of Cr. P. C. ,1898, Have been made applicable to trial and appeals before special Court u/S. 47 of the Act-In view of this position the two recoveries effected from the appellants individually in the circumstances of the case cannot be deemed to have been so connected as to form one and the same transaction or to have been so connected as to form one and the same transaction or to have been committed in the course of the same transaction therefore, offences had to be tried separately and their joint trial was irregular in the circumstances of the case-This Court set aside the conviction and sentence and remand the case for retrial-In the circumstances accused persons may be released on bail provided they furnish sureties in the sum of  Rs. 75,000/- each and the Pr of like amount each-case remanded. 2000 PLR (Qut) 1121

Jurisdiction of Sessions judge to try offence under special law- Once it was found that Session judge had jurisdiction to try offence under special law and no violation of requirement of special law causing material prejudice to accused having been show, mere misdescription of his correct designation under special law was of no consideration. 1999 P.Cr.L.J 1033

Narcotics possession & Recovery :– Prosecution witnesses have supported prosecution story and  this court have not found  any material  infirmity   in their evidence to hold otherwise ,but that from evidence it proves  the possession –Even the recovery  of narcotics during the  search of the  house has not  been denied by the appellant – his plea is  how ever ,to the extent that he has got no  concern  with seized narcotics -Appellant  has Failed to  furnished  reasonable explanation for the same and the efface story is not worth if reliance-Nothing has been brought on record which can indicate that he has falsely been involved in this case – Reocord does not reveal and mala fides of the police officials to show that they have deposed against the appellant maliciously-Appellant has also failed to discharge burden as per – provisions u/S. 29 of the Act -As far as quantum of punishment awarded by Trial court is concerned same is not in accordance with provisions of S. 9(c ) of the Act as the quantity exceeds to kg-Appellant court is not vested with any suo motu authority or jurisdiction for enhancing sentence during appeal filed by convict especially without giving prior notice and providing fair opportunity-Appeal accordingly dismissed. 2000 PLR (Qta) 305

Notification No. S.R.O 59 (1)/97-jurisdiction of exercise police to investigate to Exercise Inspection receiving spy information to the effect that accuse was dealing in Charas, obtained search warrant from Exercise and Taxation officer and raided house of accused and after search and seizure lodged the FIR-Assertion of accused was that Excise police had no jurisdiction to effect arrest, search, seizure and to investigate into offence-Prosecution had produced Notification S.R.O 591(1)/97, dated 7/8/1997 whereby Federal Government, in exercise fo powers under S. 21 of control of Narcotic substances Act, 1997, had authorised members of  provincial Excise Inspector had no jurisdiction to investigate offence, was of no consequence in circumstances. 1999 P.Cr.L.J 1033

Reduction of sentence:- Appellant having faced trial for charge u/s. 9 on allegation of recovery of four K.G charas from his possession was convicted and sentenced to death with fine by additional sessions judge-This Court taking into consideration features of case against appellant is of view that he can be given benefit of lesser Sentence provided for offence u/s. 9 Control of Narcotic Substances Act, 1997-This Court is also of view that penalty of death or imprisonment for life is not proper and consequently maintaining connection of appellant u/S. 9 this Court alters his sentence from death to fourteen years’ R.I -Taking into consideration status of appellant in society and financial position also reduce sentence of fine from on million rupees to a half million rupees – Appeal dismissed with modification. 1999 P.Cr.L.J 438

Recovery of Charas-Be that as it any appellant without challenging conviction has prayed for the reduction of sentence on the ground that he has no previous history of dealing in the narcotics-this Court, therefore, in the circumstances with a view t provide him inclined to reduce the sentence-Appellant after his arrest on 29/1/1996 has spent a total period of about 2 years and 5 months in jail facing agony of trial-This Court, Therefore, giving the benefit of S. 382-B, Cr. P. C.  to appellant reduce his sentence to the period i.e 2 years and 5 months, already spent by him in jail-this court is also reducing sentence of fine from Rs. 5000/- to Rs. 1000/- This appeal with reduction and modification in the sentence is dismissed -Appeal dismissed. 1999 P.Cr.L.J 1632

Safe dispensation of criminal justice : Where the entire quantity of the narcotic substance is not recovered or secured in bulk, but the recovery thereof comprises of strips or pieces, then the recovery official would always be duty bound to take out sample from each and every such strip or piece for referring the same to the Chemical Examiner to arrive at a safe conclusion h tat all such strips or pieces actually comprised of narcotic substances and the exclude all possibilities of doubt that none of them was not of narcotic substance. PLD 2003 Kar. 230

Search warrants in Raid- mandatory or directory – Petitioner was arrested on 23/2/1999 by I.P/CIA during said at his house as 26 K.G Charas, was recovered from a drum being inside room of his house-It appears that law givers have coached S. 20 of the Act in such manner that it does not place a mandatory obligation upon investigating agency to obtain search warrants from the Special judge before conducting a raid-All parts of a statute are required to be enforced in letter and spirit and no plea can be entertained that a particular part of a statute is redundant-But from the language employed in a statute it can be gathered whether it is mandatory or directory in its nature – In section 20 of the Act word “may” has been used with reference to obtaining search warrants by the agency who intended to effect search of a house, place, premises or conveyance etc-It is also known principle of interpretation of statute that word “may” sometimes can be used as “shall” -But perusal of section 20 of the Act suggests that law has not prescribed consequences of conducted search without obtaining the warrants from special Court-It is directory in nature, therefore, depending upon facts and circumstances of each case if the investigating agency has not obtained search warrants from special judge before conducting raid in a house for  the recovery of narcotics, this reason alone would not be sufficient to vitiate the trial-There is yet another important aspect of the case whether petitioner being a citizen was not entitled for the protection of Article 14 of Constitution-Object of conducting raid after obtaining warrants of search from the court is to ensure privacy of home of a citizen in whose house raid is conducted. 2000 PSC (Crl.) SC (Pak) 792

High Court Rules and Orders, Vol. III, Chap. 24, Rr. 1 & 2:– Trial Court had neither tried to ascertain as to whether the accused had enough means to engage a counsel for himself, nor he was afforded the services of a counsel on Government expenses which was mandatory in view of S. 340, Cr.P.C read with High Court Rules and Orders, Vol. III, Chap. 24, Rr. 1 & 2-Accused had been awarded the sentence of imprisonment for life by the Trial Court on the basis of evidence recorded in absence of a counsel and he in the circumstances was entitled to be defended by a counsel and he in the circumstances was entitled to be defended by a counsel under the law-Impugned judgment was consequently set aside due to violation of the aforesaid provisions of law and the case was remanded to Trial Court for fresh decision after complying with the directions of High Court given in the case.   PLD 2003 Quetta 73

10. Prohibition on owning, operating premises or machinery for manufacture of narcotic drugs, etc
 

No one shall own, manage, operate or control any premises, place, equipment or machinery for the purpose of manufacture or production of cannabis, cocaine, opium, opium with the conditions of a licence and payment of such fees as may be prescribed.

  11. Punishment for contravention of Section 10
 

Whoever contravenes the provisions of section 10 shall be punishable with imprisonment which may extend to twenty-five years but shall not be less than ten years and shall also be liable to fine which shall not be less than one million rupees.

12. Prohibition of acquisition and possession of assets derived from narcotic offences
 

No one shall knowingly:–

(a)        Possess, acquire, use, convert, assign or transfer any assets which have been derived, generated or obtained, directly or indirectly, either in his own name or in the name of narcotic substances which constitutes an offence punishable under this Act, the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) order, 1979 (P.O. No. 4 of 1979), or under any other law for the time being in force, or constituted and offence under any law repealed by this Act; the Control of Narcotic Substances Ordinance, 1996 (XCIV of 1996) or any other law repealed by this Act;

(b)        hold or possess on behalf of any other person any assets referred to in clause (a); and

(c)        conceal or disguise the true nature, source, location, disposition, movement, title, or ownership of such assets by making false declaration in relation thereto.

13. Punishment for contravention of section 12
 

Whoever contravenes the provisions of section 12 shall be punishable with imprisonment which may extend to fourteen years but shall not be less than five years and shall also be liable to fine which shall not be less than the prevailing value of the assets and such assets shall also be liable to forfeiture to the Federal Government.

14. Prohibition on aiding, abetment or association in narcotic offences
 

No one shall, within or outside Pakistan, participate in, associate or conspire to commit, attempt to commit, aid, abet, facilitate incite, induce or counsel the commission of an offence punishable under this Act.

Explanation.-For the purpose of this section, a person shall be deemed to have associated with, conspired, aided, abetted, facilitated, incited, induced or counseled an offence within the meaning of this section if he does anything in a place beyond Pakistan; or 

(a)               would constitute an offence if committed within Pakistan; or

(b)               under the laws of such other place, is an offence relating to narcotic drugs, psychotropic substances or controlled substances having all the legal substances having all the legal or analogous conditions required to constitute it as an offence punishable under this Act.

15. Punishment for contravention of Section 14
 

Whoever participates in, associates, conspires to commit, attempts to commit, aids, abets, facilitates, incites, induces or counsels the commission of an offence in contravention of Section 14 shall, whether such offence be or be not committed in consequence of such participation, association, conspiracy, aid, abetment, facilitation, inducement or counseling, and notwithstanding anything contained in section 116 of the Pakistan penal Code (Act XLV of 1860), be punishable with the punishment provided for the offence or such lesser punishment as may be awarded by the Court.

Court Decisions

Allegation being recovery of 5 Kg. Of opium from the petitioner-Learned judges fo the High court directing the trial Court below to conclude-Trial of the case within three months-The plea with the trial court therefor was that Notification conferring special court’s powers on it had not been issued-Held That: Such Notification had since been issued the trial of the case be now concluded within the prescribed period-Leave to appeal refused. 2000 PSC (Crl.) SC (Pak) 908

16. Punishment for offence for which no punishment is provided
 

Whoever contravenes any provision of this Act or any rule or order made, or any licence, permit or authorization issued here-under, for which no punishment is separately provided in this Chapter, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to fine thousand rupees, or with both. 

 

  17. Obstructions to officers
 

Whoever hinders or obstructs any officer in the performance of his functions under this Act or willfully furnishes to such officer any information which is, to his knowledge or belief, false in material particulars shall be punishable with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.

18. Limit of fine, etc
 

Where for any offence under this Act no amount of minimum fine has been fixed, the Special Court shall impose a fine keeping in view the quality and quantity of the narcotic drug, psychotropic substance or controlled substance involved in the commission of such offence.

19. Forfeiture of assets of an offender
 

Notwithstanding anything contained in section 13, where the Special Court finds a person guilty of an offence punishable under this Act and sentence him to imprisonment for a term exceeding three years, the court shall also order that his assets derivable from trafficking in narcotic substances shall stand forfeited to the Federal Government unless it is satisfied, for which the burden of proof shall rest on the accused, that they or any part thereof, have not been so acquired.

CHAPTER III
 
SEARCH AND INVESTIGATION
20. Power to issue warrants
 

            (1) A Special Court may issue a warrant for the arrest of any person whom it has reason to believe to have committed an offence punishable under this Act, or for the search, whether by day or by night, of any building, place, premises or conveyance in which he has reason to believe any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed.

            (2)        The officer to whom a search warrant under sub-section (1) is addressed shall have all the powers of an officer acting under section 21.

Court Decisions

Search warrant and seizure proceedings-Obtaining a search warrant was a rule and exercise of unusual power to effect search or arrest without warrant an exception-Conscious application of mind needed on part of officer to effect search or arrest without a warrant as to possibilities of escape or concealment of evidence on part of offender – Provisions of S. 21(2) of control of Narcotics substances Act, 1997 required that before or immediately after taking any action under S. 21(2) of said act, officer concerned must record grounds and the basis of his information and proposed action and forthwith  send a copy thereof to his immediate superiors Such safeguard was provided to prevent abuse of extraordinary powers. 1999 P.Cr.L.J 1033

21. Power of entry, search, seizure and arrest without warrant
 

            (1) Where an officer, not below the rank of sub-Inspector of police or equivalent authorized in this behalf b the Federal Government or the Provincial Government, who from his personal knowledge or form information controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in an building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for this escape, such officer may:-

(a)               enter into any such building, place, premises or conveyance;

(b)               break open any door and remove any other obstacle to such entry in case of resistance;

(c)                seize such narcotic drugs, psychotropic substances and controlled substances and other materials used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and

(d)               detain, search and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act.

(2)       Before or immediately after taking any action under sub-section (1), the officer referred to in that sub-section shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer.

Court Decisions

Provision of S. 21 of the control of Narcotics Act, 1997 being directory and not mandatory in nature, departure from the same in cases heinous offences could be treated as an irregularity and not an illegality fatal to the prosecution case. [1996 P. Cr. L.J 60 dissented from] 1999 P.Cr.L.J  824

Obtaining a search warrant was a rule and exercise of unusual power to effect search or arrest without warrant an exception-Conscious application of mind needed on part of officer to effect search or arrest without a warrant as to possibilities of escape or concealment of evidence on part of offender – Provisions of S. 21(2) of control of Narcotics substances Act, 1997 required that before or immediately after taking any action under S. 21(2) of said act, officer concerned must record grounds and the basis of his information and proposed action and forthwith  send a copy thereof to his immediate superiors Such safeguard was provided to prevent abuse of extraordinary powers. 1999 P.Cr.L.J 1033

jurisdiction of exercise police to investigate to Exercise Inspection receiving spy information to the effect that accuse was dealing in Charas, obtained search warrant from Exercise and Taxation officer and raided house of accused and after search warrant from excise and Taxation officer and raided house of accused and after search and seizure lodged the FIR-Assertion of accused was that Excise police had no jurisdiction to effect arrest, search, seizure and to investigate into offence-Prosecution had produced Notification S.R.O 591(1)/97, dated 7/8/1997 whereby Federal Government, in exercise fo powers under S. 21 of control of Narcotic substances Act, 1997, had authorised members of  provincial Excise Inspector had no jurisdiction to investigate offence, was of no consequence in circumstances. 1999 P.Cr.L.J 1033

Heroin, recovery of –In  a Cr. App. Preferred u/s. 48 of C.N.S. Act, 1997 on behalf of appellant against judgment passed by addl. Sessions judge/Special judge CNS, whereby the appellant has been converted u/s. 9, control of Narcotic Substances Act, 1997 and sentenced to suffer R.I for 4 years plus five-Complainant got lodged FIR alleging therein that a bus was stopped and checked -on the basis of suspicion the passenger who was occupying middle seat in the bus was alighted from it and as a result of his personal search two plastic bags were recovered from his shoes weighing 290 gms-Heroin which was taken into possession-It is not mandatory to comply with the pre – requisite contained in S. 103, Cr. C.P at the time of personal search-In this regard – In this courts considered the accusation beyond reasonable doubt and impugned judgment being free from any illegality or irregularity hardly calls for any interference-Appeal accordingly dismissed. 2000 P. Cr. R. 1149

22. Power to seizure and arrest in public places
 

An officer authorized under section 21 may:-

(a)       seize, in any public place or in transit, any narcotic drug, psychotropic substances or controlled substance in respect of which he has reason to believe that an offence punishable under this Act has been committed, and, alongwith such drug, substance or any other article liable to confiscation under this Act and any document or other article punishable under this Act; and

(b)       detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug, psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him.

Explanation.-For the purpose of this section, the expression “public place” includes any public conveyance, hotel, shop or any other place intended for use by, or accessible to the public.

23. Power to stop and search conveyance
 

An officer referred to in section 19, may, if he has reson to suspect that an conveyance I, or is about to be, used for the transport of any narcotic drug, psychotropic substance or controlled substance in respect of which he suspects that any provision of this Act has been or is being, or is about to be, contravened at any time, stop such conveyance or, in the case of an aircraft, compel it to land and:-

(a)              rummage and search the conveyance or part thereof;

(b)              examine and search any goods on or in the conveyance; or

(c)               if it becomes necessary to stop the conveyance, he may use all reasonable force for stopping it.

24. Undercover and controlled delivery operations
 

(1) Subject to sub-section (2) and to any treaty, arrangement or understanding with any foreign State to which Pakistan may from time to time be party, the Federal Government may give approval in writing to controlled delivery operations, for the purpose of gathering evidence in Pakistan or elsewhere relating to the commission of any offence against this Act or a similar law of a foreign State.

(2)        Approval may not be given under sub-section (1) unless the Federal Government:-

(a)        suspects that persons, whose identity may or ma not be known, have engaged in, are engaging in or are about to engage in, conduct constituting an offence against this Act or a similar law of a foreign State; and

(a)               is satisfied that the proposed operations are properly designed to give such persons an opportunity to manifest that conduct or provide other evidence of it.

(3)       The Federal Government may give approval from time to time for a period not exceeding three months.

(4)       Without limiting the generality of sub-section (1), the activities which may be undertaken by an authorised participant in the course of and for the purposes of a controlled delivery and undercover operation include:-

(a)              allowing any conveyance to enter or leave Pakistan;

(b)              allowing any narcotic drug, psychotropic substance, manufactured drug controlled substance, property or other thing in or on the conveyance to be delivered or collected;

(c)               using such force as may be reasonable in the circumstance s to enter and search the conveyance;

(d)              placing a tracking device in or not the conveyance; and

(e)                allowing any person who has possessing or custody of the narcotic drug, psychotropic substance, manufactured drug, controlled substance, property or other thing to enter or leave Pakistan.

(5)       Notwithstanding anything contained in any other law for the time being in force an authorized participant in an undercover operation or a controlled delivery shall not incur any criminal liability by taking part in it in accordance with the terms or approval.

(6)       Any drug of dependence, controlled chemical, controlled equipment or controlled material imported into Pakistan in the course of an approved undercover operation or controlled delivery shall be liable to be dealt with as if it were a prohibited import for the purposes of the Customs act, 1969 (iv of 1969).

 
25. Mode of making searches and arrest
 

The provisions of the code of Criminal Procedure, 1898, except those of Section 103, shall, mutandis, apply to all searches and arrests in so far as they are a not inconsistent with the provisions of section 2, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections.

Court Decisions

Recovery proceedings-Recovery of narcotics from a running vehicle or made on a highway or roadside-Validity-Provision of S. 25, Control of Narcotic substances Act, 1997 had excluded the application of s. 103, Cr. P.C -Where recovery was made on a highway or roadside or from a running vehicle, the provision of S. 103, Cr. P. C.  were also not applicable, 2000 P.Cr.L.J 907

Mode of making search and arrest :– Applicability of S. 103, Cr. P. C.  has been specifically excluded in the cases covered under the control of Narcotic Substances Act, 1997-When the statute evolves its own procedure for the purpose of search and investigation, then impliedly it excludes the applicability of general law of search and investigation to the extent. 2000 P.Cr.L.J 969 (d) = 2000 P.Cr.L.J 657       

Heroin, recovery of – It was a Cr. App. Preferred u/s. 48 of C.N.S. Act, 1997 on behalf of appellant against judgment passed by addl. Sessions judge/Special judge CNS, whereby the appellant has been converted u/s. 9, control of Narcotic Substances Act, 1997 and sentenced to suffer R.I for 4 years plus five-Complainant got lodged FIR alleging therein that a bus was stopped and checked -on the basis of suspicion the passenger who was occupying middle seat in the bus was alighted from it and as a result of his personal search two plastic bags were recovered from his shoes weighing 290 gms-Heroin which was taken into possession-It is not mandatory to comply with the pre – requisite contained in S. 103, Cr. C.P at the time of personal search-In this regard – In this courts considered the accusation beyond reasonable doubt and impugned judgment being free from any illegality or irregularity hardly calls for any interference-Appeal accordingly dismissed. 2000 P. Cr. R. 1149

            Independent witnesses-Non – association of, contention with regard to non – association of independent witnesses with the search and recovery, held, cannot be raised in the face of S. 25 of CNS Act, 1997 which has categorically excluded application of S. 103, Cr. P. C.  to the searches, made under this Act-Held further: It is a settled principle of construction of  statutes that when in an enactment a special procedure has been laid down and a special provision has been made on a particular subject than  a general provision does not apply to that subject. 2000 PLR (Pesh) 271

26. Punishment for vexatious entry, search, seizure or arrest
 

Any person empowered under Section 20 or Section 21 who:-

(a)       without reasonable grounds of suspicion, enters or searches, or causes to be entered or searched, any building, place, premises or conveyance;

(b)       vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic drug, psychotropic substance, controlled substance or any other article or document relating to any offence under this Act; and

(c)       vexatiously and un-necessarily detains, searches or arrests any person, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine which may extend to twenty-five thousand rupees.

  27. Disposal of persons arrested and articles seized
 

            (1) Every person arrested and articles seized under a warrant issued under section 20 shall be forwarded without delay to the authority by whom the warrant was issued; and every person arrested and article seized under section 20 or section 21 shall be forwarded without delay to:–

(a)               the officer-in-charge of the nearest police station; and

(b)               the Special Court having jurisdiction.

(2)       The authority or officer to whom any person or article is forwarded under this section shall, with all convenient despatch, take such measures as may be necessary under the law for the disposal of such person or article.

28. Powers to invest officers of law enforcement agencies with powers of an officer-in-charge of a police station
 

The Federal Government may invest any officer of law enforcement agency or any other officer within their respective jurisdiction with the powers fo an officer-in-charge of a police station for the investigation of offence under this Act.

29. Presumption from possession of illicit articles
 

In trials under this Act, it may be presumed, unless and until the contrary is roved, that the accused has committed an offence under this Act in respect of:-

(a)       any narcotic drug, psychotropic substance or controlled substance;

(b)       any cannabis, coca or opium poppy plant growing on any land which he has cultivated;

(a)               any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or

(b)               any materials which have undergone any process towards the production or manufacture of narcotic drug, psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance r controlled substance has been produced or manufactured, for the possession of which he fails to account satisfactorily.

Court Decisions

Raid-Fundamental right-Petitioner was arrested on 23/2/1999 by I.P/CIA during said at his house as 26 K.G Charas, was recovered from a drum being inside room of his house-It appears that law givers have coached S. 20 of the Act in such manner that it does not place a mandatory obligation upon investigating agency to obtain search warrants from the Special judge before conducting a raid-All parts of a statute are required to be enforced in letter and spirit and no plea can be entertained that a particular part of a statute is redundant-But from the language employed in a statute it can be gathered whether it is mandatory or directory in its nature – In section 20 of the Act word “may” has been used with reference to obtaining search warrants by the agency who intended to effect search of a house, place, premises or conveyance etc-It is also known principle of interpretation of statute that word “may” sometimes can be used as “shall” -But perusal of section 20 of the Act suggests that law has not prescribed consequences of conducted search without obtaining the warrants from special Court-It is directory in nature, therefore, depending upon facts and circumstances of each case if the investigating agency has not obtained search warrants from special judge before conducting raid in a house for  the recovery of narcotics, this reason alone would not be sufficient to vitiate the trial-There is yet another important aspect of the case whether petitioner being a citizen was not entitled for the protection of Article 14 of Constitution-Object of conducting raid after obtaining warrants of search from the court is to ensure privacy of home of a citizen in whose house raid is conducted. 2000 PSC (Crl.) SC (Pak) 792

30. Presumption as to documents in certain cases
 

Where in the course of an investigation for an offence committed under this Act, or any other law for the time being in force, any document is produced or furnished, or has been seized from the custody or control of any person, the Special Court shall:-

(a)        Presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the hand-writing of any particular person or which the Special Court may reasonable assume to have been signed by, or to be in the hand-writing of, any particular person, is in that person’s hand-writing, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested;

(b)        admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence; and

(c)        Presume, unless the contrary is proved, the truth of the contents of such document.

31. Power to call for information
 

          (1) An officer authorised under section 21 may, during the course of an enquiry in connection with the contravention of any provision of this Act:–

(a)               call for information from any person for the purpose fo satisfying himself whether there has been any contravention of the provisions of this Act, or any rule or order made thereunder;

(b)               require any person to produce or deliver any document or thing useful or relevant to the inquiry;

(c)                examine any person acquainted with the facts and circumstances of the case; and

(d)               require any band or financial institution, notwithstanding anything contained in any other law for the time being in-force, to provide any information whatsoever.

 

    32. Articles connected with narcotics
 

1) Whenever an offence has been committed which is punishable under this Act, the narcotic drug, psychotropic substance or controlled substance, materials, apparatus and utensils in respect of which, or by means of which, such offence has been committees shall be liable to confiscation:

(2)        Any narcotic drug, psychotropic substance or controlled substance lawfully imported, transported, manufactured, possessed, or sold alongwith, or in addition to, any narcotic drug, psychotropic substance or controlled substance which is liable to confiscation under sub-section (1) and the receptacles or packages, and the vehicles, vessels and other conveyances used in carrying such drugs and substances shall likewise be liable to confiscation;

Provided that no vehicle vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the offence was being, or was to be, committed.

Court Decisions

Articles connected with narcotics-Expression “owner” used in S. 32-Scope – Word “owner” used in proviso to S. 32 is significant-rights of owners who had not knowledge of the commission of offence or had no conscious hand in the crime on the owner of the vehicle who may be running a taxi-service or had given the car to Rent a Car service or whether he had handed a vehicle to a driver for running an errand for him and had nothing to do with the crime were fully protected-If such a vehicle, owner of which was not involved in the commission of offence was ultimately to be released on conclusion of trial, there appears to be no lawful justification to keep the same in custody for misuse of the official of the detaining agency.   PLD 2003 Pesh. 87

   33. Procedure for making confiscation
 

(1) In the trial of offences under this Act, whether the accused in convicted or acquitted, the Special Court shall decide whether any article frozen or seized in connection with such offence is liable to confiscation.

  (2)      Where any article seized under this Act appears to be liable to confiscation under Section 32, but the person who committed the offence in connection therewith is not known or cannot be found, the Special Court may inquire into and decide such liability, and may order confiscation accordingly:

Provided that no order of confiscation of an article shall be made until the expiry of one month from the date of freezing or seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim:

Provided further that if any such article, other than a narcotic drug, psychotropic substance or controlled substance is liable to speedy and natural decay, or if the Special Court is of opinion that its sale would be for the benefit of its owner, he may at any time direct it to be sold and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale.

(3)        Any person who is not convicted under this Act and claims any right to property which has been confiscated under sub-section (2) may, within thirty days, apply to the Special Court for setting aside the order of confiscation:

Provided that the period of thirty days may be extended for such further period as may be deemed appropriate by the court in the event of the said person not having knowledge of the confiscation.

(4)        A narcotic drug, psychotropic substance or controlled substance seized under this Act shall be disposed of under Section 516A of the Code of Criminal Procedure, 1898 (Act V of 1898). 

 
34. Federal Narcotics Testing laboratory, etc
 

(1) The Federal Government may, as soon as may be after the comme4ncement of this Act, set-up a Federal Narcotic Testing Laboratory and such other institutes and narcotics testing research laboratories or notify any other laboratory or institute to be a Federal Narcotic Testing Laboratory for carrying out the purposes of this Act.

(2)       The Provincial Government may, wherever deems appropriate, setup Provincial Narcotics testing Laboratories.

  35. Government Analyst
 

The Federal Government or a provincial government may, sample of any narcotic drugs, psychotropic substance or controlled substance has been submitted for test and analysis shall deliver to the person submitting it, a signed report in quadruplicate in the prescribed form and forward one copy thereof to such authority as may be prescribed.

(2)       Notwithstanding anything contained in any other law for the time being in force, any Document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted, be conclusive.

 
CHAPTER IV
 
FREEZING AND FORFEITURE OF ASSETS
  37. Freezing of assets, etc
 

           (1) Where the Special Court trying an offence punishable under this Act is satisfied that there appear reasonably grounds for believing that the accused has committed such an offence, it may other the freezing of the assets of the accused, his relatives and associates.

(2)        Where in the opinion of the Director –General or an officer authorised under Section 21 an offence is being or has been committed, he may freeze the assets of such accused and within seven days of the freezing shall place before the court the material on the basis of which the freezing was made and further continuation of the freezing or otherwise shall be decided by the Court.

(3)        The said officer shall trace, identify and freeze the assets during the investigation or trial for the purpose of forfeiture by the Special Court:

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