2015 P Cr. L J 974
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Kamran Khan Mulakhail, JJ
MUHAMMAD ISMAIL and another ---Petitioners
versus
The STATE---Respondent
Criminal Revision No.25 of 2014, decided on 24th July, 2014.
Control of Narcotic Substances Act (XXV of 1997) ---
----Preamble, Ss. 2(k)(s)(za), 9(c) & 16---Drugs Act (XXXI of 1976), Ss.23 & 28---Criminal
Procedure Code (V of 1898), S.221---Possessing or trafficking narcotics ---Recovery of alcohol,
beer and acid ---Framing of charge ---Alcohol, beer and acid, were recovered from the vehicle and
FIR under Ss.23 & 28 of the Drugs Act, 1976 was lodged against accused---Application of
accused filed under S.221, Cr.P.C. for framing charge under S.16 of Control of Narcotic
Substances Act, 1997, having been rejected by the Trial Court ---Validity ---Recovered liquid,
which had been identified as 'Hydrochloride Acid (HCL)', used as chemical regent in laboratory
experiments, did not fall within the definitions of "controlled subs tance", "narcotic drug" and
"Psychotropic substance" as provided in S.2(k)(s)(za) of Control of Narcotic Substances Act,
1997---Recovered liquid not falling within the mischief of S.9(c) of Control of Narcotic
Substances Act, 1997, nor coming under any def inition of the contraband item/substance, order
passed by the Trial Court/Special Court, whereby application of accused filed under S.221,
Cr.P.C. was rejected, was set aside---Trial Court was directed to alter the charge and to frame the
same for an offen ce punishable under S.16 of Control of Narcotic Substances Act, 1997,
thereafter to proceed with the case strictly in accordance with law.
Zahoor Ahmed Mengal for Petitioners.
Abdul Sattar Durrani, Additional Prosecutor -General for the State.
Date of hearing: 26th June, 2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This Criminal Revision
Petition, under section 439 of the Criminal Procedure Code, 1898 ("Cr.P.C .") is directed against
the order dated 27 -3-2014 passed by the learned Special Judge (CNS)/Sessions Judge Noshki,
("trial Court"), whereby the application under section 221, Cr.P.C. filed by the petitioner for
framing of charge under section 16 of Control of Narcotics Substances Act, 1997 ("CNS Act")
was rejected.
2. The relevant facts for disposal of the instant petition are that FIR No.13 of 2014 was
lodged with police station Noshki under section 23 read with section 28 of the Drugs Act, 1976
on the M arasla sent by the complainant/SI/SHO Muhi -ud-Din, alleging therein that on the stated
date time and place a Coach bearing Registration No.JA -4955 was signaled to stop. During the
search from the said vehicle 94 bottles Alcohol, 40 tins of beer and 48 Jeri -cans of Acid
(containing 30 liters each) were recovered and taken into possession, whereas the driver namely
Muhammad Ismail and cleaner Waheed Ahmed were arrested on the spot.
3. After completion of investigation the challan of the case was submitted b efore the trial
Court and charge was framed against the appellants on 27- 3-2014 to which they did not plead
guilty and claimed trial. On the same date the learned trial Court vide order impugned herein
dismissed the afore -referred application filed by the petitioner.
The learned trial Court in para No.8 of the impugned order, while dismissing the
application under section 221, Cr.P.C. for framing the charge of an offence under section 16 of
the C.N.S. Act, observed as under:
"Without touching the meri ts of the case, the suspected liquor were chemically examined
and declared by the Government Analyst in his report as Hydrochloric Acid (HCL), admittedly
the alleged liquor are not attracting in the schedule of psychotropic substances, but the liquor
safel y comes in the definition of controlled substances, the transport of psychotropic or
controlled substances are conditional, the law specified the delivery of any narcotics drugs or
other substance for medical, scientific or industrial purpose subject to the permission or licence
[sic], in the instant case no licence [sic] or permission was obtained from the competent
authority."
4. Mr. Zahoor Ahmed, Advocate for the petitioner at the very outset referred to the chemical
analysis report (page 41) and conte nded that the recovered substance was chemically examined
on 26- 2-2014, which concluded that the recovered substance is 'Hydrochloric Acid (HCL)',
which is used 'as chemical regent in laboratory experiments'. He further added that on receipt of
chemical an alysis report it was confirmed on record that the liquid so recovered does not fall
within the purview of psychotropic substance, therefore, is not included in the schedule
appended to the C.N.S. Act. He argued that section 16 of the C.N.S. Act, might be a ttracted in
the petitioner's case, which provides a punishment for offence, "for which no punishment is
provided". He maintained that the learned trial Court erred in law and wrongly opined that the
recovered substance falls within the purview of controlle d substances, therefore, the
transportation thereof shall be governed under valid license/permit. He contended that the law is
silent in this behalf and the observation made by the learned trial Court is not supported by any
provision of law, which for the time being is enforced in the country. He finally urged for setting
aside the impugned order and prayed that in such view of the fact, the learned trial court may be
directed to alter the charge.
5. Mr. Abdul Sattar Durrani, the learned Additional Prose cutor General strongly opposed
the contention and supported the impugned order.
6. We have heard the respective parties and have gone through the record of the case. In
order to better understand the controversy, it would be instructive to reproduce the preamble of
the CNS Act, which runs as under:
"Whereas it is expedient to consolidate and amend the laws relating to narcotic drugs,
psychotropic substances, and control the production, processing and trafficking of such drugs
and substances."
Keepin g in view the preamble of the CNS Act it would be helpful to reproduce the
relevant definition clauses of the CNS Act, which provide as under:
"2. Definitions
(k) "controlled substance" means any substance which may be used for the production or
manuf acture of narcotic drugs or psychotropic substance;
(s) "narcotic drug" means coca leaf cannabis heroin, opium, poppy straw and all
manufactured drugs;
(za) "psychotropic substance" means the substances, specified in the Schedule to this Act and
such substances as the Federal Government may, by notification in the official Gazette, declare
to be a psychotropic substance."
The afore referred definitions clearly distingui sh the contraband substances, therefore, the
recovered liquid, which has been identified as HCL does not fall within the definition of either of
the aforesaid definitions provided in the CNS Act, however, it is instructive to refer the
definition and usage of HCL as provided in "The American Heritage Dictionary of the English
Language, Fourth Edition updated in 2009 by "Houghton Mifflin Company", which runs as
under:
"Definition
A clear, colorless, fuming, poisonous, highly acidic aqueous solution of hydrogen
chloride, HC1, used as a chemical intermediate and in petroleum production, ore reduction, food
processing, pickling, and metal cleaning. It is found in the stomach in dilute form"
Ref Usage:
(1) To 'pickle' steel. This is a process whereby rust and scale is removed from steel sheet or
coil with the use of a dilute solution of Hydrochloric Acid. The metal can then be processed.
(2) To manufacture organic compounds such as Vinyl Chloride and Dichloroethane which
are used to produce PVC (Poly Vinyl Chloride).
(3) To regulate the pH level in a wide range of manufacturing and treatment processes
including the production of drinking water, pharmaceuticals, beverages and foods.
(4) In the processing of additives for the food industry including fructose, citric acid and
hydrolyzed vegetable protein.
(5) To produce inorganic compounds for water treatment including drinking water and waste
water.
(6) To neutralize the water in swimming pools making it safe for bathers.
(7) To regenerate ion exchangers.
(8) To process leathers in the tanning industry.
(9) To purify common salt.
(10) In North Sea oil production where it is used to facilitate oil well acidizing.
This chemical is also known as Muriatic Acid or Spirits of Salt. It is commonly referred
to by its chemical formula HCl.
This chemical is also known as Muriatic Acid or Spirits of Salt. It is commonly referred
to by its chemical formula HCl.
Hydrochl oric Acid varies in strength, therefore as precautionary measures it is advisible
that one must wear PPE (Personal Protective Equipment) including approved eye protection,
compatible safety gloves, safety boots and safety coveralls. Concentrated Hydrochlor ic Acid
should be handled under fume extraction.
Since, the recovered liquid does not fall in either of the definitions of contraband
substances, provided in CNS Act, while the FIR in the instant case was instantly lodged under
sections 23 and 28 of the Drug Act, 1976, it appears that after registration of FIR and on failure
of Investigating Officer to justify the registration of case the challan of the case has been
submitted under the CNS Act, but keeping in view the submission made by the learned counsel
for the petitioner and the prayer made in the petition we refrain ourselves to render any
observation on merits of the case. However, we are of the considered opinion that the recovered
liquid does not fall within the mischief of section 9(c) of the CN S, Act nor it comes under any
definition of the contraband item/substance.
Therefore, the impugned order dated 27- 3-2014 passed by the learned Special Judge
(CNS)/Sessions Judge Noshki is hereby set aside and the application under section 221, Cr.P.C.
filed by the petitioner is accepted. The learned trial Court is directed to alter the charge and to
reframe the same for an offence punishable under section 16 of the C.N.S. Act and thereafter to
proceed with the case strictly in accordance with law.
HBT/ 37/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.