PESHAWAR: The Peshawar High Court on Friday granted bail to around 75 suspected drug pushers due to the government’s failure to notify special courts required by a recently-enacted provincial anti-narcotics law for their detention on remand and subsequent trial.

A bench consisting of Chief Justice Waqar Ahmad Seth and Justice Ahmad Ali accepted the bail pleas of those suspects asking them to produce two surety bonds valuing Rs400,000 each.

The bench, however, denied bail to a suspect as the contraband allegedly recovered from him weighed more than 10kg.

The provincial government hasn’t notified the special courts required by the KP Control of Narcotics Substance Act (KPCNSA), 2019, despite the passage of around four months and thus, causing the flooding of the high court with petitions seeking bail for those held under the new law.

At the outset of hearing into those petitions, the bench observed that the cases would be decided in light of a high court judgment delivered on Dec 27, 2019, which pointed out several lapses on part of the provincial government and police department.

KP govt fails to form special courts four months after legislation

In that judgment, the court had observed that according to Section 33 of the KPCNSA, the arrested persons and seized articles should be produced before the special court within 24 hours and that only a special court had been given the jurisdiction to take measures for their disposal.

It had added that the special court within the purview of Section 22 of the Act was a court established by the provincial government and notified in the official Gazette for which judges had to be appointed after consultation with the high court chief justice.

The bench questioned whether in the absence of a special court, the production of narcotic substance and accused before an ordinary court of the sessions judge could fulfil the mandate of Section 33 of the Act and whether the court of sessions judge had the jurisdiction to deal with the seized articles and arrested people and pass any order regarding their fate.

“When the law provides an act to be done in a specific manner, then it should be done accordingly,” the bench ruled, adding that the legal infirmity made the accused/petitioner entitled to the concession of bail.

Another lapse pointed out by the bench was regarding Section 28 of the KPCNSA on the power of entry, seizure and arrest without warrant by an authorised officer.

In the earlier case the bench had pointed out that the entire record was silent with regard to any authorisation by the Regional Police Officer (RPO) to the complainant (police officer) to perform duties as an authorised officer under the Act. “Therefore, it would be determined at trial stage as to whether seizure and arrest etc. by the complainant are legally warranted or not? And till then the accused/petitioner cannot be detained behind the bars where the status of complainant himself is dubious.”

In some of the current cases, the petitioners were allegedly involved in petty nature offences as they were having very meager quantity of narcotics. In some of the cases the petitioner was charged with possessing one gram of Ice (Crystal Meth) whereas in some other cases the suspect was arrested on charges of having 60 grams of charas.

The KPCNSA was published in official Gazette on Sept 4.

While passing the law the government had claimed that it had incorporated specific provisions for checking the growing use of ice or crystal meth in the province.

Through the new provincial law, the Control of Narcotics Substance Act, 1997, was repealed within Khyber Pakhtunkhwa to the extent of cultivation, possession, selling, purchasing, delivery and transportation of narcotics.

Lawyers Noor Alam Khan, Amjad Noor Afridi, Aqil Mohammad, Ali Zaman, Sahibzada Riazatul Haq and others appeared for the petitioners.

Lawyer Noor Alam said several important notifications had so far not been issued by the government including the establishment of special courts and notifying chemical analysts, etc.

He referred to a Supreme Court judgment, which declared, “when a special court got exclusive jurisdiction to deal with a matter, then all remands, etc. must be obtained from Special Court and from no other court at all.”

The lawyer added that in light of that judgment, the accused from the date of arrest having not been produced before the special court, their detention was without lawful authority, so such act could not be legalised or regularised by any subsequent order passed at a belated stage even by a court of competent jurisdiction.

Published in Dawn, January 4th, 2020