The Weight of Contraband alone cannot be the Sole Factor for Determining Bail in Narcotics Cases; Instead, A Case must be Assessed based on its Unique Circumstances --- Islamabad High Court, Islamabad

Islamabad 13-12-2024: The Islamabad High Court (IHC), comprising Mr. Justice Tariq Mehmood Jehangiri, Mr. Justice Babar Sattar, and Mr. Justice Arbab Muhammad Tahir, delivered a landmark judgment in [Crl. Misc. No. 431-B/2024] concerning bail provisions under the Code of Criminal Procedure, 1898 (Cr.P.C.), and the Control of Narcotic Substances Act, 1997 (CNSA). The judgment provides critical clarity on the interpretation of “punishable” under Section 497(1), Cr.P.C., and the investigative obligations in narcotics cases.

The Court tackled two pivotal legal questions:

1. Whether the “maximum” or “minimum” punishment prescribed for an offense determines the applicability of the prohibitory clause under Section 497(1), Cr.P.C.
2. What constitutes a “borderline case” for contraband weight in narcotics cases, sufficient to warrant further inquiry.

The Court ruled that the term “punishable” in Section 497(1), Cr.P.C., refers to the maximum punishment prescribed for an offense. This interpretation ensures that the prohibitory clause applies to offenses with a maximum punishment of ten years or more, irrespective of the likely sentence. The Court dismissed arguments favoring the use of “minimum punishment,” as it would render significant parts of the provision redundant.

The Court reaffirmed established principles distinguishing two categories of non-bailable offenses:

1. Those punishable with death, life imprisonment, or imprisonment for ten years or more (prohibitory clause applies).
2. Those with imprisonment of less than ten years, where bail is a rule and refusal an exception.

Relying on precedents like Tariq Bashir Vs. The State (PLD 1995 SC 34), the Court emphasized that reasonable grounds for guilt must be shown by the prosecution to deny bail.

The Court addressed the contentious issue of “borderline cases” in narcotics offenses, ruling that the weight of contraband alone cannot be the sole factor for determining bail. Instead, a case must be assessed based on its unique circumstances.

The judgment criticized the inefficiency of investigating agencies in narcotics cases. It highlighted the failure to investigate the complete narcotics chain, including sources, financial beneficiaries, and the tracing of illicit assets. The Court emphasized that such investigations are a duty, not a discretion, under the CNSA.

The insertion of Section 49A in the CNSA allows for a remand period of up to 90 days. The Court clarified that remand should be utilized effectively to investigate the entire chain of narcotics operations, not limited to mere recovery of contraband.

The Court laid down several key principles:

1. The term “punishable” in Section 497(1), Cr.P.C., refers to the maximum punishment.
2. Investigative agencies must trace the entire chain of narcotics operations and assets derived from illicit drug trade.
3. The term “borderline cases” should not undermine the strict enforcement of the CNSA.
4. Bail decisions must balance the accused’s right to liberty with the societal impact of narcotics offenses.

The Court directed the Anti-Narcotics Force, Inspector General of Police, and judicial officers to adhere to the principles outlined in the judgment. Copies of the decision were sent to relevant authorities to ensure compliance.

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