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Unformatted text preview: Miscellaneous VOLUME-V Pages 1914-2596 Peshawar High Court 1914 Nasrullah --- Petitioner Versus The State --- Respondents JUDGMENT Cr. Misc: (BA) No. 590/2000 (2002 UC 330) Date of hearing 02/10/2000 EJAZ AFZAL KHAN,J.--, J.- This Full Bench has been constituted to examine whether the provisions contained in sections-21 and 22 of the Control of Narcotic Substances Act of 1997, hereinafter called, the Act are directory or mandatory and if any of the acts mentioned therein is done in violation of these provisions what would be the effect thereof on the case as a whole? 2. The circumstances, necessitating the examination of this aspect of the above-mentioned provisions of the Act are that one Nasrullah hereinafter called, petitioner, on having been found in possession of 7, 8, 9 of the Act was registered against him vide FIR No.49, dated 22.1.2000 in the Police Station Baddaber, when failed to get the concession of bail from the Judge Special Court, moved this Court for his enlargement on bail. 3. The petition was heard by His Lordship Mr. Justice Tariq Parvez. The concession of bail before his Lordship was mainly sought on the ground of violation of the provisions of sections 21 and 22 of the Act on the strength of the judgments of this Court which were authored by my Lord the Chief Justice in Cr.Misc: No.646 of 2000 (Gulyar Khan V. The State ) decided on 19.7.2000, Cr. Misc: No.767 of 2000 (Saleem V. The State) on 18.7.2000 and another judgment of his Lordship, as he then was, Mr. Justice Jawaid Nawaz Khan Gandapur in Muhammad Ikram V. The State (2000 P.Cr.L.J. 891). Peshawar High Court 1915 4. During the course of arguments yet another judgment of an Hon’ble Division Bench of this Court delivered in the case of Qeemdi Hassan V. The State (1999 P.Cr.L.J. 824) was brought to the notice of his Lordship in which a view contrary to the view expressed n the judgments of the aforesaid three Cr.Misc: petitions, was taken whereby the Hon’ble Bench after holding the provisions of sections 21 and 22 of the Act to be directory, refused to grant bail, so his Lordship Mr. Justice Tariq Pervez, in view of these conflicting judgments made a reference to the Hon’ble Chief Justice who after considering the matter constituted a Full Bench to hear this case in order to settle the controversy once for all with regard to the application of sections 21 and 22 of the Act. 5. The learned counsel for the petitioner Mr. Khushdil Khan, Advocate while appearing before the Full Bench contended that an A.S.I. is not an authorized officer within the terms of sections-21 and 22 of the Act, therefore, the arrest and seizure so made by him are illegal and of no consequence. He by reading out sections 21 and 22 of the Act contended that they are mandatory in nature and neglect to comply therewith would invalidate and vitiate the entire proceedings. He, next contended that it is well-established principle of law that where a Statute requires a thing to be done in a particular manner that has to be done in that way or not at all. In order to add strength to his aforesaid argument he placed reliance on the case of Khalid Nawaz V The State (1998 P.Cr.L.J. 2008). The learned counsel while dilating upon the mandatory nature of the provisions of the Act also placed reliance on a recent judgment of the Hon’ble Supreme Court in the case of Muhammad Afzal V. The State (P.L.D 2000 S.C. 816) wherein it was held that where C.I.A. personnel despite knowing that they were not empowered to investigate the case had done so was clear violation of law and was also against the principle of supremacy of law. 6. On the other hand, learned Addl: Advocate General Mr. Imtiaz Ali, submitted tht the provisions of sections 21 and 22 of the Act are directory and not mandatory in nature as no consequence of neglect to comply therewith has been mentioned in Peshawar High Court 1916 the Statute. By placing reliance on the judgment of the Hon’ble Supreme Court in the case of State through Advocate General Sindh V. Bashir and others (PLD 1997 S.C. 408), he submitted that if an officer other than the one authorized by the Statute has made entry, search, seizure and arrest in a case, this will not affect the validity of the investigation and if, he supplemented his argument, a case some how or the other has been investigated by an officer not so authorized by the Act, in that case the panacea provided by section 156 of the Cr.P.C. can be brought to the rescue of such investigation. The learned Addl:. Advocate General at the end by affirming the directory nature of the provisions of the Act also placed reliance on a Division Bench judgment of the Lahore High Court in the case of Muhammad Ramzan V. Muhammad Iqbal Sub-Inspector of Police, Distt: Kehari Mitroo and another (1998 P.Cr.L.J. 828) wherein the Hon’ble High Court declined to quash the proceedings on the ground of violation of sections-21 and 22 of the Act. 7. We have carefully considered the arguments of the learned counsel for the parties and the case law so produced by them. Before we express our opinion on either of the sides, we think it proper to examine all the provisions of the Act in order to know its scheme and legislative intent behind it. A bare reading of the Act from preamble to the end would show that the raison deter for legislating this law was to consolidate and amend the laws relating to drugs and the legislature while enacting this law was fully alive fo the other laws and the loopholes therein, that is why the process of consolidating and amending them was embarked upon. If on the one hand, it provided, like all other laws, for the punishment of offenders, it also on the other hand, provided to regulate the treatment and rehabilitation of addicts and formatters connected therewith and incidental thereto. In short, it can be seen that an e4xhaustive effort was made to cover every conceivable aspect of the phenomenon that plagued our society ever since 1979. It is pertinent to note that people who made fortune or piles of money out of this business were not allowed to go scot free whether at national or international level and on all fronts an effective and orchestrated endeavour was made to deal with them from the Peshawar High Court 1917 origin to the ultimate end of the crime. The provisions contained in Chapters IV, VII and VIII are clear examples in this behalf. It is to be seen as to what was the intention of the legislature vis-à-vis the provisions of the Act which was so perfectly enacted with an all encompassing legislative wisdom. Before we discuss this aspect of the act and answer the reference, it is worth-while to see what is the test to determine as to the directory or mandatory nature of a provision of law. In Corpus juris Secundum Vol. 82 Statute at Page 869 the learned author has dealt with this aspect of Statute as under:“While there is no absolute test by which it may be determined whether a statue is mandatory or directory the primary rule is to ascertain the legislative intent as revealed by an examination of the whole act.” In Halsbury’s Laws of England, the learned author has expressed as follows:“No universal rule can be laid down for determination whether the provisions are mandatory or directory in each case, intention of the legislature must be ascertained by looking at the whole scope of the Statute and, in particular, at the importance of the provisions in question in relation to the general object to be secured.” In Liverpool Borough Bank V. Turner (1861) 30 LJ Ch 379, at P.380 Lord Penzance observed as follows:-“No universal rule can be laid down as to whether a mandatory enactment shall be construed directory only or obligatory on an implied nullification for disobedience. It is the duty of the Courts of justice to try to get the real intention of the legislature by carefully attending to the whole scope of the Statute to be construed.” Peshawar High Court 1918 8. From the above-quoted passages it is quite clear that no rule of universal application can be laid down. However, a duty is always cast on the Courts to carefully attend to the whole scope fo the statute to be construed to determine whether the provisions thereof are mandatory or otherwise. 9. In another case of Howard v. Bodington (1877) 2 PD 203, at P.211 Lord. Penzance supported this view in the dictum that still holds true:-“I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory. I have been very carefully through all the principal cases, but upon reading them all the conclusion at which I am constrained to arrive in perusal of these cases. They are on all sorts of subjects. It is very difficult to group together and the tendency of my mind, after reading them, is to come to the conclusion which was expressed by Lord Campbell in the case of Liverpool Bank V. Turner.” 10. After quoting some of the above-mentioned passages the Hon’ble Supreme Court in one of the judgment rendered in the case of Atta Muhammad Qureshi V. Settlement Commissioner (P.L.D. 1971 S.C. 61) observed as under:“One other principle which has been enunciated in this behalf is that as a general rule, statutes, which enable person to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language. At page-226 of Craies on Statutory Laws, 6th Edition, this rule is stated thus:-Peshawar High Court 1919 “That when a statute confers jurisdiction upon a Tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly applied.” Bearing these principles in mind, I have reached the conclusion that sub-clause (5) of section 20 of the Act is mandatory is character and places a limitation on the jurisdiction of the revising authority not to make any adverse order against a person without giving him opportunity to showcause against it. If such an order is made without fulfillment of this pre-requisite, it would certainly lack jurisdiction.” 11. The above-cited paragraphs from the celebrated and classical works of law and the judgment of the Hon’ble Supreme Court make it crystal clear that it is always for the Court to ascertain the legislative intent by examining the whole Act. While proceeding to examine the Act for ascertaining the nature of its provisions, sections 20, 21, 22 and 26 merit a careful reading which are reproduced as follows:Section-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, 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 subsection (1) is addressed shall have all the powers of an officer acting under section-21. Section-21: Power of entry, search, seizure and arrest without warrant. (1) Peshawar High Court Where an officer, not below the rank of SubInspector of Police or equivalent authorized 1920 (2) Peshawar High Court in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that 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 in any 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 his 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 substance and controlled substance and other material 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. Before or immediately after taking any action under sub-section (1), the officer 1921 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. Section 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 substance 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 which he has reason to believe may furnish evidence of the commission of an offence 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. Section 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: Peshawar High Court 1922 (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 unnecessarily 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. 12. A perusal of section 20 (2) reveals that the Special Court issuing the warrant is supposed to ensure that the officer to whom a search warrant under sub-section (1) is addressed shall have the power of an officer acting under section 21. A keen look at sections-21 and 22 would unmistakably indicate that the makers of the law never intended that an action under the provisions of sections 21 and 22 should be taken by an officer below the rank of Sub-Inspector of Police or equivalent. It is to be noted that a SubInspector by virtue of his office alone is not competent to proceed under the above provisions unless he is authorized in this behalf by the Federal or Provincial Government. The law-makers, it would thus be seen, by visualizing certain situations dispense with warrant for arrest or search when obtaining thereof would afford a person an opportunity for the concealment of evidence or facility of his escape but under no circumstances permitted any officer below the rank of Sub-Inspector of Police to do any of the acts mentioned in sections-21 and 22. A perusal of section 26 will leave absolutely no manner of doubt about the mandatory nature of the provisions of the Act because according thereto even vexatious entries, searches seizures or arrests could never be conceived by the legislature to be made by an officer not empowered and authorized under sections 20 and 21. 13. The arguments of the learned Addl. Advocate General that where the consequence of neglect to comply with the provisions is not mentioned in the Statute, it shall be deemed to be directory is devoid of force in view Peshawar High Court 1923 of the paragraphs quoted above. The other argument of the learned Addl. Advocate General that if an officer not empowered or authorized has made entry, search, seizure or arrest, it can be regularized by invoking the provisions of section 156 (2) of the Cr.P.C. is equally devoid of force in view of the provisions of section 25 of the Act because the provisions of the Cr.P.C. would apply only if the acts done by the Police Officer are not inconsistent with the provisions of sections-20, 21 22 and 23 of the Act. Section25 thus runs as under:-“The provisions of the Code of Criminal Procedure, 1898, except those of section 103, shall, mutates mutandis, apply to all searches and arrest insofar as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrest and searches made under these sections.” 14. When seen in this context the case of State through Advocate General Sindh V. Bashir and others (supra) seems to have no perceptible relevance or application to the case inhand. Moreover, in the case of Muhammad Afzal V. The State ibid the Hon’ble Supreme Court has now taken quite a different view. The relevant paragraph is reproduced as below:“8. The record reveals that though C.I.A. personnel knew it very well that they were not empowered to investigate this matter, yet, they had done so and in this way deliberately violated the provisions of section 156, Cr.P.C. Although they had prior information about the offence which was likely to be committed, yet, they had not passed on this information to the concerned police and took upon themselves the task of investigation which, we feel, was not proper. What they had done was in violation of law and was also against the principle of supremacy of law.” 15. A reference to yet another provision of the Act contained in section 72 will not be out of place which provides:-“All prohibitions and restrictions imposed by or under this Act on the import into, export from, Pakistan and transshipment of narcotic drugs psychotropic substance or controlled substances shall be deemed to be prohibitions and restrictions imposed by or under the Customs Act, 1969 (IV of 1969) and the provisions of the Act shall apply accordingly: Provided that notwithstanding anything contained in the Custom Act, 1969 (IV of 1969) or any other law for time being in force, all offences relating to narcotic drugs, psychotropic substances or controlled substances shall be tried under the provisions of this Act: Provided further that where the Officers of Customs apprehends a person involved in any offence relating to narcotic drugs, psychotropic substances or controlled substance shall be empowered to carry out inquiry and investigation in the same manner as an officer authorized under this Act.” A fleeting glance of this section would make it clearer still that every conceivable eventuality was all along in the mind of the legislature that is why even the Customs Officers were empowered to carry out the inquiry and investigation in the same manner as an authorized Officer under the Act, thus this too leaves no room for an officer Peshawar High Court 1924 below the rank of Sub-Inspector to figure anywhere in the scheme of this Act. It would, therefore, follow that the officers below the rank of S.I. are just non-entity for the purposes of this Act who can never be made entity by having recourse to the interpretative niceties. The provision contained in section 21 of the Act satisfies still another test recogniz...
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