CONTROL OF
NARCOTICS SUBSTANCES
ACT, 1997 - AN OVERVIEW
ACT, 1997 - AN OVERVIEW
By:
NOOR ALAM KHAN
Advocate Supreme Court of Pakistan
Member KPK Bar Council/
Member Exective Supreme Court Bar Association
Chairman, Voice of Prisoners
NOOR ALAM KHAN
Advocate Supreme Court of Pakistan
Member KPK Bar Council/
Member Exective Supreme Court Bar Association
Chairman, Voice of Prisoners
The Government of Pakistan plays very importance role to
control and to abolish the narcotics threat from the country, in particular,
the processing and trafficking of heroin and charas. The Government has taken
effective actions to fight against all aspects of this multi-faceted drug
problem since long. This efforts have been internationally acknowledged.
Pakistan has ratified the various United Nations (UN) Conventions and regional
bilateral treaties regarding the issues of Narcotics. Pakistan is a very
important country in the world regarding narcotic drug issues. Due to efforts
of the Government the cultivation of poppy crop has almost been abolished. This
was done only due to enforcement of strict laws.
In 1957 the Pakistan Narcotic Board (BNB) was established
that was under the control of Revenue Division to fulfil the Pakistan's
obligations under the International Opium Convention of 1925. In March 8, 1969
the Customs Act was enacted. This law was also containing anti-narcotic
measures. The Pakistan was a party to the Single Convention on Narcotic Drugs,
1961. On August 15, 1965 Pakistan ratified the said Convention. To meet its
obligations under the said Convention, the Federal Government of Pakistan,
through a declaration dated March 8, 1973, reconstituted and renamed the
Pakistan Narcotic Board (BNB) as Pakistan Narcotic Control Board (PNCB). The
Anti Narcotics Task Force (ANTF) was established in December 1991. In February
1995, Pakistan Narcotic Control Board (PNCB) and Anti Narcotics Task Force
(ANTF) were merged into a single organization called as Anti Narcotics Force
(ANF), which is now the Premier Law Enforcement Agency in the field of
narcotics control in Pakistan and also combating the narcotics and controlled
substances which enter in Pakistan mainly through the long porous border with
Afghanistan. Anti Narcotics Force Act, 1997 which reflects constitution,
functions, powers etc. of Anti Narcotics Force was also passed by the National
Assembly and came into force on April 14, 1997. As the primary drug law
enforcement agency, the ANF accumulates intelligence and is liable for arrests,
investigation and prosecution of offenders. It is also involved in seizures of
drug-generated assets and reduction of money-laundering. It is the duty of ANF
for demand reduction programs. Powers to carry out counter narcotics operations
have been delegated by the ANF to the Pakistan Coast Guard and Pakistan
Rangers.
Prior to April 1989, narcotics matters were dealt in the
Ministry of Interior, and the Pakistan Narcotics Control Board (PNCB), the
field organization, was an attached department of the Ministry. As the
complexity of narcotics problem had grown globally, and the drug abuse had
proliferated in Pakistan. Narcotics Control Division was set up in April, 1989.
Narcotics Division had traditionally been part of the Interior Ministry. The
Federal Government until 2002, had a small but effective Cabinet which
consisted of 16-17 ministers. Since then there has been a proliferation of the
Ministries to 41 and the number of Division to 46 but very little visible
improvement in the efficiency or effectiveness parameters. The Anti Narcotics
Task Force (ANTF) and the PNCB are the law enforcement arms of the Narcotics
Control Division. The PNCB was set up in 1973. This Department essentially
performs the coordinating, controlling and supervisory functions. The ANTF was
newly set up as a Force under the Narcotics Control Division. The functions of
this Force are to inquire into and investigate all offences relating to, or
connected with preparation, production, transportation, trafficking or
smuggling of intoxicants, narcotics and chemical precursors or reagent used in
the manufacture of narcotics or dangerous drugs or assets therefrom or any
offence committed in the course of the same transaction under any law for the
time being in force, including any attempt or conspiracy to commit, or any
abutment of any such offence.[1][1]
On 05-05-1995 the Federal Government of Pakistan promulgated
an Ordinance namely Control of Narcotics Substances Ordinance, 1995 to control
the production, processing and trafficking of Narcotic drugs and substances as
well as to regulate the treatment and rehabilitation of narcotic addicts and
for matters connected therewith and incidental thereto. The said Ordinance
repeatedly re-promulgated till 1997. On July 11, 1997 this Ordinance was
presented in the Parliament and it was enacted as Act of Parliament namely
Control of Narcotics Substances Act, 1997 (Hereinafter referred to as CNSA).
Intent and object of the Act, inter alia, is to control the production,
processing and trafficking of narcotics etc. [2][2] This Act
encompasses all provisions of previous laws such as Customs Act, 1969,
Prohibition (Enforcement of Hadd) Order, 1979, Drugs Act, 1976, Pharmacy Act,
1967, Dangerous Drugs Act, 1930, Opium Act, 1878 (I of 1878), But also contains
several new provisions like death penalty for trafficking and financing of
narcotic drugs, forfeiture of drug generated assets. Such like harsh punishment
were not included in old laws. Provisions of the Control of Narcotic Substances
Act, 1997, provided stringent punishment and as such same provisions were to be
construed strictly.[3][3] A bare
reading of the Act form preamble to the end would show that the reason for
legislating this law was to consolidate and amend the laws relating to drugs
and the Legislature while enacting this law was fully alive of the other laws
and the loopholes therein, that is why the process of consolidating and
amending them was embarked upon. If on the one hand, it provided, like all
other laws, for the punishment of offendes, it also on the other hand, provided
to regulate the treatment and rehabilitations of addicts and for matters
connected therewith and incidental thereto.[4][4]
No doubt Control of Narcotic Substances Act, 1997 had been
extended to the Tribal Areas, similar powers of Sessions Judge had also been
conferred on the Political Agent by virtue of notification, but a Virgil"
not constituted under Frontier Crimes Regulation, 1911 could not be treated as
a Court established in accordance with the requirements of S.46 of the Control
of Narcotic Substances Act, 1997 in the light of overall scheme of said Act. In
the first instance, it required establishment of Special Courts and then
appointment of a Sessions Judge or an Additional Sessions Judge as a Judge
Special Court after consultation with the Chief Justice of the High Court.
Courts thus established and the Special Judge appointed was to try accused in
the cases registered under Control of Narcotic Substances Act, 1997. If the
trial terminated in conviction or acquittal, an appeal thereagainst would be to
the High Court and would be heard by a Bench of not less than two Judges, when
seen in the light of S.48 of the Control of Narcotic Substances Act, 1997.
Held, Political Agent was not competent to try accused; and that the next
higher fora in the hierarchy were not competent to hear appeal or revision.
Impugned conviction and sentence awarded to accused was set aside and accused
was directed to be released on bail. Federal Government was directed by High
Court to take necessary measures for the establishment of a Special Court in
the area in accordance with the provisions of the Control of Narcotic
Substances Act, 1997. [5][5]
Under S.2(s) of the Control of Narcotic Substances Act,
1997, 'narcotic drug' meant Coca Leaf, Cannabis, heroin, opium, poppy straw and
all manufactured drugs. Poppy straws were also included in the definition of
'opium' as provided under S.2(t)(i) of the said Act. Under S.2(w) 'poppy straw'
were shown all parts except seeds of opium poppy after mowing. Poppy heads or
poppy straw thus were narcotic drug and offences relating to them were
punishable under the Act. However, poppy heads having traces of Morphine and
Codeine, recovered from the accused, could not be equated with the actual
substance popularly known as "Opium" or "heroin" etc. which
contained much higher quantity of Morphine. [6][6] Whereas
definition of "Opium" under S. 2(t)(i) of Control of Narcotic
Substances Act, 1997, has been enlarged to include all parts of poppy plant,
that is to say, stalk, leaves, flowers in addition to poppy capsules. Poppy
straw cannot be excluded from the definition of "opium".[7][7] Poppy capsule
of any species of papaver is included in the definition of 'opium' as assigned
under S.2(t) of the Control of Narcotic Substances Act, 1997 and possession
thereof is punishable under S. 9 of the said Act.[8][8]
The 'poast' could only be considered, narcotic substance, if same contained 0.2
per cent of morphine.[9][9] Poast or
Doda, being apart of a poppy plant, falls within the definition of
"opium" and, therefore, the same has to be treated and accepted as
"narcotic drug" for the purpose of S.2(s), Control of Narcotic
Substances Act, 1997. "Poast" or "Doda", both in its
natural and crushed forms, is a narcotic substance within the purview of the
CNSA.[10][10]
Provisions of S.3 of Control of Narcotic Substances Act,
1997, had provided that in case of recovery of any material defined under
clauses (g) (h) & (u) of S.2 of said Act percentage till the framing of the
rules by the Government would be determined in accordance with the Proviso to
S.3 of said Act. In the present case while examining the recovered material,
Chemical Examiner failed to give percentage of opium alkaloids, which according
to him were detected in the recovered injections. Chemical Examiner who was
under a legal obligation to find,out the percentage of the detected opium
alkaloids, having failed to do so, appeal against order of Special Court
whereby the application filed by the applicant for the determination of the
percentage of opium alkaloids from the material allegedly recovered from the
applicant was dismissed, was set aside and application of applicant before the
Trial Court was allowed.[11][11]
Percentage of morphine present in poppy capsules or poppy
straw not to be necessarily proved by prosecution. Control of Narcotic
Substances (Regulation of Drugs of Abuse, Controlled Chemical, Equipment and
Materials) Rules, 2001, had been framed to
regulate cultivation, acquisition and supply under a licence. If any
person had acquired possession of poppy straw or poppy capsules
after mowing without a licence issued, by the competent Authority;
his possession would be culpable under S. 6 of the Control of
Narcotic Substances Act, 1997, punishable under the clauses (a), (b)
and (c) of Section 9 in accordance with weight of such stuff in respective of percentage of morphine, because sub-clause (iii) of S.2(t) of the
said Act related to the mixture proposed, with or without natural, material; of any of the form of opium defined in sub-clauses (i) and (ii) which is an independent clause not affecting definition of 'opium' as contained in clauses (i) and (ii) therefore it is not essential for the prosecution to prove percentage of morphine present in poppy capsules or poppy straw.[12][12]
regulate cultivation, acquisition and supply under a licence. If any
person had acquired possession of poppy straw or poppy capsules
after mowing without a licence issued, by the competent Authority;
his possession would be culpable under S. 6 of the Control of
Narcotic Substances Act, 1997, punishable under the clauses (a), (b)
and (c) of Section 9 in accordance with weight of such stuff in respective of percentage of morphine, because sub-clause (iii) of S.2(t) of the
said Act related to the mixture proposed, with or without natural, material; of any of the form of opium defined in sub-clauses (i) and (ii) which is an independent clause not affecting definition of 'opium' as contained in clauses (i) and (ii) therefore it is not essential for the prosecution to prove percentage of morphine present in poppy capsules or poppy straw.[12][12]
All acts or omissions which may constitute offences under
the Control of Narcotic Substances Act, 1997 as well as the Customs Act, 1969
or any other law, must be treated as those committed under the Control of
Narcotic Substances Act, 1997, and be tried accordingly. Mere fact of import
and export of Narcotics should not mislead the Investigating or Prosecuting
Agencies to treat the matter as an offence under the Customs Act, 1969, because
Ss.7 & 8 of the Control of Narcotic Substances Act, 1997 expressly describe
such offences to have been committed under the said Act punishable under S.9
thereof. [13][13]
In case of possession of narcotics drugs, the prosecution
had to establish the fact that the narcotics were secured from the possession
of accused. Court was required to presume that accused was guilty, unless he
proved that he was not in possession of such narcotics. Prosecution was to
establish that accused had some direct relationship with the narcotic drugs, or
had otherwise dealt with the same. If the prosecution proved the concealment of
the articles or physical custody of it, then the burden of proving that accused
was not knowingly in possession of the articles was upon him. Knowledge was the
essential ingredient of the offence. [14][14]
Interpretation of different provisions of the Control of
Narcotic Substances Act; 1997 appears to some to be somewhat harsh or stringent
but the same is in consonance with the spirit of the said law. Said law is not
an ordinary law as the menace that it purports to curb is not common place and
the criminals who induldge in it are not of normal type. Mischief sought to be
suppressed by this law is not just a crime against a human being but a crime
against the humanity and, therefore, a response to the same has to be
aggressive and punitive rather than benign and curative. Individual subjected
to the rigours of this law may sometimes suffer disproportionately but the
greater good of the society emerging from stringent application of this law may
make this approach worth its white. [15][15]
Forfeiture of property is not automatic. Trial Court has to
satisfy that assets in question were derived or generated or obtained in
contravention of S. 12 of Control of Narcotic Substances Act, 1997, and that
too without providing opportunity of hearing not only to accused but also to
persons who are "being affected by such order".[16][16]
Section 37 of the Control of Narcotic Substances Act, 1997,
had empowered the Trial Court to order the freezing of the assets of the
accused, his relatives and associates, if reasonable grounds appeared to
believe that he had committed the offence punishable under the said Act.
Paramount consideration for freezing of the assets of the accused depended on the
existence of reasonable grounds for believing him guilty of the offence and
overwhelming grounds were present in this regard. Impugned order refusing to
defreeze the Bank account of accused did not call for any interference.
Revision petition was dismissed accordingly. [17][17]
Objections raised by the accused as to non-compliance of
Ss.20, 21 and 25 of Control of Narcotic Substances Act, 1997 and S.103, Cr.P.C.
were misconceived in fact and law. Section 25 of Narcotic Substances Act, 1997
had excluded the application of S. 103, Cr.P.C. in narcotic cases. Failure to
associate private witness would not vitiate proceeding under Control of
Narcotic Substances Act, 1997. Provisions of Ss.20, 21 and 22 of Control of
Narcotic Substances Act, 1997 being directory, non-compliance of the same would
not make the conviction bad in the eyes of law. [18][18]
Section 25 of Control of Narcotic Substances Act, 1997 excluded the application
of section 103, Cr.P.C. [19][19]
Section 20(2), Control of Narcotic Substances Act, 1997 reveals
that the Special Court issuing the warrant is supposed to ensure that the
officer to whom a search warrant under subsection (1) is addressed shall have
the power of an officer acting under section 21. A keen look at sections 21 and
22 of the said Act would unmistakably indicate that the makers of the law never
intended that an action under the provisions of sections 21 and 22 should be
taken by an officer below the rank of Sub-Inspector of Police or equivalent. It
is to be noted that a Sub-Inspector by virtue of his office alone is not
competent to proceed under the above provisions unless he is authorised in this
behalf by the Federal or Provincial Government. The law makers, it would thus
be seen, by visualizing certain situations dispense with warrant for arrest or
search when obtaining thereof would afford a person an opportunity for the
concealment of evidence or facility of his escape but under no circumstances
permitted any officer below the rank of Sub-Inspector of Police to do any of
the acts mentioned in sections 21 and 22. A perusal of section 26 of the
Control of Narcotic Substances Act, 1997 will leave absolutely no manner of
doubt about the mandatory nature of the provisions of the Act because according
thereto even vexatious entries, searches, seizures or arrests could never be
conceived by the Legislature to be made by an officer not empowered and
authorised under sections 20 and 21. [20][20]
Duty upon the Court has been cast under S.29 of Control of
Narcotic Substances Act, 1997 to presume in the trial that accused has
committed an offence under Control of Narcotic Substances Act, 1997, unless
contrary is proved. Firstly prosecution has to establish the fact that narcotic
drugs were secured from the possession of accused. If prosecution proves
recovery of narcotics from physical custody of accused, then burden of proving
that he was not knowingly in possession of the article is upon the accused. [21][21] Person
found to be in possession of illicit articles would be presumed to have
committed the offence under Control of Narcotic Substances Act, 1997 unless the
contrary had been proved. [22][22]
Under provisions of S.32 of Control
of Narcotic Substances Act, 1997, a car could only be confiscated if it was
found that owner of the car was also involved in commission of offence. [23][23] Question of
release of vehicle could not be considered in view of bar contained in S.74 of
Control of Narcotic Substances Act, 1997. Application by applicant, was
dismissed, in circumstances. [24][24] Before
passing the said order Trial Court should given notice to the owner of the
vehilce. [25][25]
Under S.36 of the Control of
Narcotic Substances Act, 1997, the whole recovered lot is not required to be
sent to Chemical Examiner for test and analysis, as a sample thereof is always
treated as a part of the total. [26][26]
Federal Government had issued
Notification No.S.R.O. 596(1)/96 by virtue of which all Narcotics Testing
Laboratories set up by Provincial Government had been declared to be Federal
Narcotics Testing Laboratories for purpose of Control of Narcotic Substances
Act, 1997. Chemical Examiner's report was admissible as per Scheme of S.47 of
the Act, 1997 with S.510, Cr.P.C. [27][27]
In pursuance of such powers the Government had issued
Notification. Forensic Science Laboratory was a Narcotics Testing Laboratory
set up by the Provincial Government and the Chemical Examiners posted therein
had been notified to be Chemical Examiner under S.510, Cr.P.C. After having
been declared to be a Federal Narcotics Testing Laboratory for the purpose of
Control of Narcotic Substances Act, 1997, the report of the Chemical Examiner
would be a report as contemplated under S.34 of the Act. Chemical Examiner and
Assistant Chemical Examiner appointed in the said Laboratory would be
considered to be Government Analyst as envisaged under S.35 of Control of
Narcotic Substances Act, 1997. Any report submitted by a Chemical Examiner or
Assistant Chemical Examiner notified under S.510, Cr.P.C. was a report of
Government Analyst within the meaning of Ss.34 & 35 of the Act and
admissible in evidence. In absence of any express exclusion of S.510, Cr.P.C,
the reports of Chemical Examiner and Assistant Examiner notified under S.510,
Cr.P.C. were also admissible in the case registered under the provisions of
Control of Narcotic Substances Act, 1997. Provisions of S.35 of Control of
Narcotic Substances Act, 1997, having been couched in affirmative words, same
would not affect the provisions of S.510, Cr.P.C. making the report of duly
notified Chemical Examiner admissible.[28][28]
Right of appeal conferred by S.48(1) of the Control of
Narcotic Substances Act, 1997 was all pervasive catering for every kind of
appeal from every kind of order passed by a Special Court and the provisions of
S.48(l) of the Control of Narcotic Substances Act, 1997 did not make any
distinction between an appeal against a conviction, an appeal against an
acquittal or an appeal seeking enhancement of a sentence passed against a
convict.[29][29] No appeal
could be preferred against an order passed in criminal revision, and secondly
an appeal under S. 48 of Control of Narcotic Substances Act, 1997 could be
preferred against an order of Special Court constituted under the Act.[30][30]
Narcotic Substances Act, 1997 is the latest and more
exhaustive law on the subject of Narcotics as compared to Prohibition
(Enforcement of Hadd) Order, 1979 and by virtue of its S.76 read with S.74 its
provisions shall have effect notwithstanding anything contained in any other
law for the time being in force including the Prohibition (Enforcement of Hadd)
Order, 1979.[31][31]
Territorial limits of Control of Narcotic Substances Act,
1997 had been extended to the whole of Pakistan, including the territorial
limits of all the Airports in Pakistan, cognizance of crime under Control of
Narcotic Substances Act, 1997 was rightly taken under the provision of the said
Act as by virtue of its S.76, the Act had overriding effect on the other laws
for the time being in force.[32][32]
Intent and object behind enacting Control of Narcotic
Substances Act, 1997, inter alia, was to control the production, processing and
trafficking of narcotics etc. and the Act being a special law the effective
provisions thereof could not be defeated on technicalities.[33][33]
Pakistan is a very important country in the world regarding
narcotic drug issues. Due to efforts of the Federal Government and the
Provincial Governments the cultivation of poppy crop has almost been abolished.
This was done only due to enforcement of strict laws such as Control of
Narcotics Substances Act, 1997. It is very strange situation that after
promulgation of such harsh CNSA, 1997, drug trafficking has not been controlled
and narcotics demand have not abridged.
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