Law: Civil Procedure Code (V of 1908)

Section: 497 , 11-C , 2(e) , 27 , 28 , 29 , 59

Criminal Procedure Code (V of 1898)---

----S.497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 11-C, 2(e), 27,28, 29 & 59---Control of Narcotic Substances Act (XXV of 1997), Ss. 20, 21, 22---Possession of 3000 grams of ICE---Bail, refusal of--Power of entry, search, seizure and arrest without warrant---"Authorized officer" (in terms of the S. 28 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 )---Scope---Assistant Sub-Inspector recovered six (06) packets of ICE, each weighing 500 grams, lying in vehicle being driven by the petitioner/ accused--Contention of the petitioner/accused was that to effect recovery an Assistant SubInspector was not an "authorized officer" in terms of the S. 28 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019---Validity---Under Control of Narcotic Substances Act, 1997 ('the Act 1997'), an officer not below the rank of Sub-Inspector was authorized to make search, seizure or arrest etc., meanwhile the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 ('the Act 2019') had been promulgated and as per S. 59 of the Act 2019, the Act 1997 to the extent of cultivation, possession, selling, purchasing, delivery and transportation etc within Province, to the extent of the Khyber Pakhtunkhwa was repealed--Regarding "power to entry, search, seizure and arrest without warrant", S. 28 of the Act, 2019 was analogous to a great extent with S. 21 of the Act 1997, with the exception that the words "authorized officer" had been mentioned in S. 28 of the Act 2019 whereas S. 21 of the Act 1997 stipulated "an officer not below the rank of

Sub-Inspector of Police)---Section 2(e)(ii) of the Act, 2019 had defined an "authorized Officer" as a police officer/official not below the rank of Sub-Inspector, authorized by the Regional Police Officer---Although, in the present case, recovery had been effected by an Assistant Sub-Inspector, however, Ss. 20 to 22 of the Act, 1997 were directory in nature---Thus cumulative effect of said provisions mentioned in the Act, 1997 as well as the Act, 2019, the power to entry, search, seizure and arrest without warrant by an officer below the rank of Sub-Inspector, if made, would not vitiate the case nor the same could be made a ground for the grant of bail---Petitioner had been arrested red-handed and recovery of huge quantity of ICE had been affected from the vehicle being driven by him who, at the relevant time, was all alone in the said vehicle---Petitioner could not dispute his conscious knowledge regarding concealment/presence of the narcotic substance in the vehicle---Relevant page of the concerned register showed the assurance of safe custody of the samples (case property )which were separated from all the packets and were sent for chemical analysis---Report of FSL had confirmed the said samples as "Methamphetamine" (i.e. ICE)---No mala fide, ill-will or grudge had been shown against the police for falsely involving the petitioner in the present case nor it was possible for the police to plant such a huge quantity of ICE which was an expensive drug---Record prima facie connected the petitioner/accused with the commission of the offence punishment whereof fell within the prohibitory of section 497 of the Criminal Procedure Code, 1898, disentitling him to the concession of bail---Bail was refused to the petitioner, in circumstances.