Certain lacunas in the new provincial anti-narcotics law and delay in establishment of special anti-narcotics courts by the Khyber Pakhtunkhwa government has resulted into flooding of cases in Peshawar High Court of suspects arrested for drug pushing.

The enactment of the Khyber Pakhtunkhwa Control of Narcotics Substance Act, 2019, has also resulted into substantial increase in population of Peshawar Central Prison as suspects even arrested for possessing a meagre quantity of narcotics have to remain behind bars for many months.

As the arrested suspects had no option available in the new law to apply for bail they have to move the high court under its constitutional jurisdiction provided in Article 199 of the Constitution by filing writ petitions.

Some of these petitioners were arrested for possessing one gram of methamphetamine, commonly known as ice drug or crystal meth.

On Jan 3, a bench of Chief Justice Waqar Ahmad Seth and Justice Ahmad Ali granted bail to suspects in around 75 writ petitions with condition of furnishing two sureties of Rs400,000 each.

Scores of petitions have been pending before the court wherein the petitioners sought their release on bail.

The KP Control of Narcotics Substance Act (KPCNSA) was passed by the provincial assembly on Aug 27 and received assent of the governor on Sept 2, 2019. The law was published in the 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Through the KPCNSA, the federal law, Control of Narcotics Substance Act, 1997, was repealed in Khyber Pakhtunkhwa to the extent of cultivation, possession, selling, purchase, delivery and transportation of narcotics.

The provincial law was challenged by a citizen Asmat Ullah through a senior lawyer Noor Alam Khan, an expert in anti-narcotics law, in the high court on multiple grounds.

However, a bench comprising Chief Justice Waqar Ahmad Seth and Justice Mohammad Naeem Anwar dismissed the said petition on Nov 20. The petitioner had contended that the CNSA 1997 was already extended to whole of Pakistan and thus in its presence the provincial assembly had no authority to pass a law on the same subject.

He had contended that though the Concurrent Legislative List of the Constitution has been omitted from the Constitution through the Constitution (Eighteenth Amendment) Act, 2010, a mini concurrent list was still available in Article 142 relating to criminal law, criminal procedure and evidence, therefore any law made by a provincial legislature on these subjects would be against Article 143 of the Constitution and the federal law on the subject would prevail.

In its detailed judgment, the court had ruled that the provincial law was enacted within the sphere and powers of the provincial assembly. However, the court ruled that under section 21 of the Act all the offences under this law were cognizable and non-bailable, but nowhere the Act provided the provision of release of an accused person on bail either before the commencement of trial or when trial delays for any reason beyond the control of an accused.

“The law stresses the principle of presumption of innocence. The principle embodies freedom from arbitrary detention and provides a safeguard against punishment before conviction for the reason that ultimate conviction and incarceration of a guilty person can repair the wrong caused by mistaken release of interim bail granted to him, but there is no satisfactory compensation to an innocent at any stage of the case, albeit his acquittal in the long run,” the bench ruled.

While dismissing that petition the bench directed the provincial government to streamline the law in the light of the said observations to maintain discipline in the society.

So far, the government has not implemented those directives given by the high court in relation to bail provision in the new law.

Section 22 of KPCNSA provides for setting up of special courts to be notified by the provincial government after consultation with the PHC chief justice. Moreover, under section 23 the special court shall have exclusive jurisdiction to try all offences under the Act.

Similarly, section 33 provides that any person arrested and articles seized under this Act shall be produced within 24 hours of the arrest or seized, before the special court.

While four months have passed, the provincial government has yet to notify the special courts thus resulting into several legal complications. The bench questioned whether in absence of a special court, the production of narcotic substance and accused before an ordinary court of 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 articles seized by the complainant and person arrested and to pass any order regarding the fate of the same.

“When 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 KPCNSA regarding power of entry, seizure and arrest without warrant by an authorised officer.

The bench had pointed out that the entire record was silent with regard to any authorisation by the regional police officer 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 where the status of complainant himself is dubious.”

Experts on the subject believe that the government should notify the special courts at the earliest and should also amend the law in light of the direction given by the high court.

One of them said that unless the government amend the law and notify the special courts, suspects would get benefit under the existing law.

Published in Dawn, January 6th, 2020