Arrest sans search warrant ‘not sufficient ground’ to grant bail to a drug-pusher: SC

ISLAMABAD    –    The Supreme Court of Pakistan Friday ruled that the arrest of an accused without a search warrant in cases related to narcotics cannot be the sole ground for acquittal of the suspect and rendering the entire trial bad in the eye of law.

A two-member bench of the apex court headed by Justice Qazi Faez Isa and comprising Justice Yahya Afridi conducted hearing of an appeal of Syed Zulfiqar Shah against the Peshawar High Court (PHC) judgment to grant him bail in the drug case.

The PHC on 04.04.2022 and the trial court on 22.03.2022 had dismissed Zulfiqar’s applications for bail after arrest in FIR registered for the commission of offence under section 9(d) of the Khyber Pakhtunkhwa Control of Narcotics Substances Act, 2019. Police had arrested the petitioner on the basis of information that he sells charas, and recovered from him; two closed packets of charas, each weighing 1205 grams; and one open packet weighing 810 grams.

The main contention of the petitioner’s counsel was that the police did not obtain the requisite search warrant for conducting the raid on his client’s house, as required under section 27 of the KPK Act of 2019. He claimed that recovery of charas was made in violation of the law, and thus, cannot be relied upon for connecting the petitioner with the commission of the alleged offence. The judgment, authored by Justice Yahya Afridi, observed that the Section 27 of the KPK Act, 2019, is identical to the provisions of section 20 of the Control of Narcotics Substances Act (CNSA), 1997. It said that in the Fida Jan case a three-member bench of the Supreme Court ruled that though section 20 of CNSA is directory nature but non-compliance thereof cannot be the sole ground for acquittal of the accused, and rendering the entire trial bad in the eye of law. The court said that the provisions of section 27 of the KPK Act of 2019, which are identical to the provisions of section 20 of the CNSA of 1997, are also directory in nature, and their non-compliance though may entail departmental disciplinary action or penal action or both against the delinquent police official, but do not affect the admissibility of the fact of recovery of the narcotics in evidence before the trial court.

 The contention of the counsel for the petitioner is, therefore, rejected. The judgment said that it is not a sufficient ground to grant bail because a warrant was not obtained in a case within the prohibitory clause of section 497, Cr.P.C. The Court said: “We find no legal error in the impugned orders which had declined the relief of bail to the petitioner pending his trial. Therefore, the petition is dismissed.”

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