multan bench, multan judicial department

Form No. HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT,
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
Crl. Misc. No: 4569-B/201j
(Ali
Asghar
Vs.
The State etc.)
Date of Hearing: 15.10.2014.
Petitioner
by:
State by:
ltVs Ch. Muhammad Naeem and
Muhammad Malik Khan Langah,
Advocates..
Malik Riaz Ahmad Saghla, DPG with
Saleem. SI.
Muhammad Tariq Abbasi: J:- The petitioner namely Ali
Asghar seeks post anest bail
in
case
FIR No. 394/2014,, dated
08.06.2014, registered under Section 9(c) of the Control of Nar<.otic
Substances Act, 1997, at Police Station Seetai Maari, District
Multan.
2.
The precise facts, as per FIR are that on 8.6.2014, u'hen
Muhammad Saleem,
SI
(complainant), alongwith other Pc,lice
officials was on patrolling, he received a spy information that the
petitioner having 'bhang'was available at Samejabad, Multan; the
complainant alongwith his companions, reached at the spot and
apprehended the petitioner; during search, from a bundle (Ga:nt),
which he was lifting, 'bhang' .weighing five kilogram
was
recovered.
3.
After hearing learned counsel for the parties and perusing the
record,
it is observed that in the FIR, only
recovery
of
'bhang',
without specifying particular parts thereof, is alleged. In var;ous
dictionaries of English ianguage, the word 'bhang' is define<l as
C
j,lisc. No.4569-B/20II
'hemp'. Whether 'bhang' a narcotic substance, is a question, the
answer of which cculd be found
in
Section 2(s) of the Contr'll
Narcotic Substances Acr, 1997, where narcotic drug has
of
been
defined as Coca leaf, cannabis heroin, opium, poppy straw and all
manufactured drugs. The term "cannabis (rcmp) " has been deiined
in Section 2(d) of the Acr ibid, in the following terms:-
(i) cannabis resin (charas) that is, the separated resin
whether crude or purified obtained from the cannabi't
plant and also includes concentrated preparation and
resin Jcnown as hashish oil or liquid hashish;
tlrc Jlowering or fruiting tops of the cannabis plan!
(excluding the seed and leaves when not accompanied b1'
the tops) from which the resin'has not been extracted b1'
whatever name they may be designaftd or known; and
(ii)
(iii) any mixtutre with or without neutral materials of an1'
of the above forms of cannabis or any drink preparecl
therefrom;
From the above meritioned definition, given in Section 2(d)(ii) , it is
clear that
if
"bhang (he*p)
" contains specific parts, flowering or
fruiting tops, from which resin has not been extracted, then the :ase
would be covered by the Act ibid and punishable under Section 9 of
the Act. In this regard, reliance may be placed to the cas,: of
"Fazeelat Ribi Vs. The State" (zOOZ Vf-,n 3021), the relerant
portion whereofreads as under:-
"This clearly establishes that when Bhang/hemp is
referred to without specification ofany particular part o1'
the sctid plant and withottt the other details mentioneq
above the offence would becovered 5y the provisions o1'
the Prohibition (Enforcement of Hadd) Order, 1979 ana
recovery of Bhang/hemp would attract the provisions oJ'
the Control of Narcotic Substances Act, 1997 only when
the reEtirements of section 2(d) thereof are fulfilled. In
the case in hund the F.I.R, the Memorandum of Recovery
and the report of the Chemical Examiner do not specify
as to whether the substance allegedly recovered from the
petitioner's possession was the flowering or fruiting tops
of the cannabis plant. or not, as to whether the same
Crl Mtsc.
No.J 569'R/20 I
t
excluded the seeds and leaves when not accompanied
b1'
the tops or not and as to whether resin had beer:
extracied from the recovered substance or not' In these'
circumstinces prima facie it is dffiult for us to hold tha':
the requiremen* of sectibn 2(d) of the Control orr
Narcotic Substances Act, 1997, were fulfilled in the cast
in hand so as to attract the said Act to the present case
Thus, we have no other option but to fall back upon tfu'
provisions of the Prohibition (Enfcrcement of Hady'
Order, 1979 vis-d-vis the allegation against
the
petitioner. "
4.
As stated above in the situation in hand, no particular part of
the alleged recovered substance (bhang) has been described. The
report of the chemical examiner is still awaited' hence
nature and kind
confirmed.
of
till nor'r' the
alleged recovered substance could not be
It would be seen during the trial whether the offi:nce
would fall under the provisions of the Act ibid ot the Prohib:tion
(Enforcement of Hadd) Order,7979.
5.
The petitioner is behind the bars, he is no more requirec. ibr
any further investigation in this case and nothing is to be recovlred
from him. Keeping him, confined in the jail would serve no useful
purpose. Resultantly, this petition is allowcd, and the petitionr:r is
admitted to bail, subject
to fumishing bail bonds in the sunr of
Rs.2,00,000/- (Rupees two lac only) with two sureties each, in the
like amount to the satisfaction of the leamed trial court.
irseph).
Abid/+
Approved for reporting.
(Muhammad Tariq A
Judge