The Control of Narcotic Substances Act, 1997 (hereinafter the CNSA), has been enacted, as a Special Law, mainly to curb the menace of narcotics in Pakistan. An offence under this Act is, in effect, an offence against the society. The principal object of the promulgation of the CNSA is to control the production, processing and trafficking of narcotics, etc., and having been promulgated for that special purpose, its procedure and requirements of proof of offences are a bit different from those provided in other laws on criminal justice in Pakistan. The procedure provided for in the CNSA must be followed to achieve the purpose of the enactment of this Act.
One of the striking features of the Act that is different from the general principles of safe administration of criminal justice, is that the onus to prove the guilt of the accused had not been placed entirely on the prosecution; rather it is the accused that must prove his innocence. Legislature had cast a presumption in favour of the prosecution, which is to be rebutted by the accused to prove that he is not guilty of the crime the charge of which has been levelled against him. Section 29 of the CNSA, provides that “in trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused had committed an offence under this Act….” However, it was held by the Supreme Court of Pakistan (hereinafter SCP) that “primarily the onus is on the prosecution to prove that whatsoever was recovered, were narcotic drugs and the same was recovered from the possession of the accused.” (2011 SCMR 1954)
Another distinguishing aspect of the CNSA is that Section 103 of the Code of Criminal Procedure (CrPC), 1998, has been excluded from the purview of Section 25 of the Act and the official/police witnesses are made as good witnesses as private ones, but in absence of tangible, cogent and concrete enmity with the accused. Issuance of search warrant prior to the raid is required under Section 20 of the Act and an officer not below the rank of Sub-Inspector of Police or equivalent is authorized to enter and search any premises etc., seize narcotic substances and arrest the accused under Sections 21 and 22. Since these provisions are directory in nature, therefore, the non-compliance with them cannot be considered a strong ground for holding that the trial of the accused is bad in the eye of the law. However, the august SCP has held that when the prosecution had established the factum of recovery any shadow of reasonable doubt and proved the accusation to the hilt, violation of the provisions as contained in Sections 21 and 22 of the CNSA, would not vitiate the trial and, at the most, such an irregularity could be cured under Section 537 of the CrPC as it had caused no prejudice to the accused. (2003 SCMR 1237)
Any vehicle, etc., used for transporting, etc., of narcotics is to be confiscated under Section 32 and normally such vehicle, etc., is not given on interim custody/Superdari to the owners by the courts, whereas, the same may be given to the real owner if he had no knowledge about transporting of narcotics. Guidelines are provided in judgements i.e. 2016 YLR 1326, 2007 PCR.LJ 755, and 2003 SCMR 246.
Under Control of Narcotic Substances (Government Analysts) Rules, 2001, it is required to send parcels of recovered substance to concerned laboratory for chemical analysis within 72 hours. However, delay alone in sending samples for chemical examination is no ground to discard report of the Chemical Examiner. (PLJ 2012 SC 841)
For the purpose of conducting chemical analysis, only a small sample from recovered substance is sufficient to determine as to whether the same is a narcotic drug or not. Law does not prescribe any specific quantity for the purpose of analysis (2016 YLR 1060). However, sample taken of a recovered substance must be a representative sample of the entire substance recovered. If no sample is taken from any particular packet/cake/slab or if different samples taken from different packets/cake/slab are not kept separately for their separate analysis by the Chemical Examiner, then the sample would not be a representative sample and it would be unsafe to rely on mere word of mouth of prosecution witnesses regarding the substance of which no sample has been taken or tested being narcotic substance (PLD 2012 SC 380). Nonetheless, all the recovered narcotics substance, if mixed up and then sent for chemical analysis, prosecution can request that the entire recovered narcotics be examined (2013 SCMR 1538). Though sample taken separately but consolidated and sent for chemical examination may be considered as one sample and sentence may be reduced (2014 SCMR 1603).
Narcotic recovered jointly from more than one accused cannot be equally distributed to determine the quantum of punishment (PLD 2016 SC 471). In narcotic cases, the approach of the court should be dynamic and minor irregularities or discrepancies must be overlooked (2012 PCr.LJ 1729). Intent and object of the Act, inter alia, is to control the production, processing and trafficking of narcotics, etc. This Act being a special law, the effective provisions thereof could not be defeated with technicalities (2009 MLD 878).
Involvement of ladies and juvenile in the said business of narcotics had become order of the day, as they could easily earn benefit of their gender and tender age. Mandatory remedies and concessions accorded by the law could not be withheld. While exercising discretionary power, regard must be had to the consequences, ensuing therefrom. Courts were required to strike the balance, as future of the whole generation could not be sacrificed at the altar of unwarranted concession to a drug trafficker.
The maximum sentences for different quantities of recovered contraband narcotic substances are provided in Section 9 of the Act, however, no minimum sentence is provided therein and legislatures have left upon discretion of the court to award proper sentence according to circumstances of each case, but this discretion has been withheld by Lahore High Court while giving sentencing policy in famous case PLD 2009 Lahore 362.
The intent and object of the promulgation of the Control of Narcotic Substances Act, 1997, was to control the production, processing and trafficking of narcotics etc., and having been promulgated for that special purpose, its operative provisions should not be crushed on mere technicalities. In achieving the object of the Act, court should be vibrant and minor irregularities or discrepancies must be overlooked.