PESHAWAR: Even more than 10 months after the enforcement of the Khyber Pakhtunkhwa Control of Narcotics Substance Act, 2019, the provincial government hasn’t set up special courts to deal with drug cases.

As the special courts didn’t exist, the provincial government with the consent of the Peshawar High Court’s chief justice had empowered the sessions and additional sessions judges and judicial magistrates under the law in Feb this year to deal with narcotics cases and thus, increasing their workload.

Official sources told Dawn that the high court recently conveyed its concern about the delay in the establishment of special courts to the provincial government.

They said at the request of the government, the PHC chief justice had conditionally consented to designate the existing courts of sessions judges and additional sessions judges and those of judicial magistrates First Class as special courts under the KP Control of Narcotics substance Act (KPCNSA), 2019.

The sources said the government had so far not taken any step for the courts’ establishment and things could lead to a crisis-like situation as the government and the high court were not on the same page on the matter.

PHC conveys concern about delay to govt

They said while the high court was interested in the early establishment of special narcotics courts, the government had been dragging its feet on the issue.

“The designated courts are not meant for all times to share the workload generated by two different enforcement agencies including the Directorate General of Excise and Taxations and the police department as introduced and authorised for the registration of cases and investigation under the law,” said an official in the know.

He said the fact was brought to the knowledge of the government at the time of the conveying of the chief justice’s consent.

Sources said the high court had told the government that if it intends to run with the scheme of designated courts for the purpose of the KPCNSA to save the additional cost of infrastructure and support staff of judges in case of the establishment of special courts, it will have to create additional posts of additional sessions judges and of judicial magistrates.

They said the designation of the existing courts as the special courts to deal with narcotics cases was creating hardships for them to manage the workload with the existing strength.

The sources said despite the communication of the need to the provincial government for establishment of the special courts and create posts of judges in the financial year 2020-21, no action had so far been seen.

They said initially, under the KP Control of Narcotics Substance Act (KPCNSA), which had come into force in Sept 2019, Section 22 of the law provided for the setting up of special courts to be notified by the government in consultation with the high court’s chief justice.

Under Section 23 of the law, the special court will have the exclusive jurisdiction to try all offences under the Act.

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

As there was no provision for the delegation of powers on existing courts and for many months the special courts were not set up by the provincial government, it had caused several legal complications. The lawyers had also started boycott of courts on the call of the KP Bar Council.

Due to the same reason, suspects arrested for narcotics trafficking had to move the high court seeking their release on bail. In Jan this year, the court had granted bail to such suspects in large numbers.

To cope with that situation, the provincial government promulgated the KP Control of Narcotics Substance (Amendment) Ordinance, 2019, making changes to the Act, including Section 22 that empowers the government to designate or confer powers on judges to act as heads of special narcotics courts.

Subsequently, with the completion of the 90-day constitutional life of that ordinance, the government again promulgated the KP Control of Narcotics Substance (Second Amendment) Ordinance, on Apr 29, 2020.

The ordinance was tabled in the provincial assembly as a bill and was passed on July 13. It awaits the assent of the governor for enactment.

In one of the bail petitions, a high court bench had also given observations about setting up of special courts.

In Dec 2019, the bench had ruled: “The Special Court within the purview of Section 22 of theActis a Court established by the provincial government and notified in the official Gazette for which Judges have to be appointed after the consultation with the Chief Justice of Peshawar High Court.”

According to it, a legal question arises that whether in the absence of Special Courts, the production of narcoticsubstancesand accused before an ordinary court of sessions can fulfill the mandate of Section 33 of theActand whether the court of sessions judge has the jurisdiction to deal with the articles seized by the complainant and person arrested and to pass any order regarding the fate of same.

“This legal infirmity makes the accused/petitioner entitled for the concession of bail.”

Published in Dawn, July 19th, 2020