October 2014

CONTROL OF NARCOTICS SUBSTANCES
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

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]

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] 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] 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]

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]

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] 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] 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] The 'poast' could only be considered, narcotic substance, if same contained 0.2 per cent of morphine.[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]

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]

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]

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]

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]

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]

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]

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]

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] Section 25 of Control of Narcotic Substances Act, 1997 excluded the application of section 103, Cr.P.C. [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]

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] 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]

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] 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] Before passing the said order Trial Court should given notice to the owner of the vehilce. [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]

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]

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]

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] 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]

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]

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]

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]

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.

[1]. http://www.globalesecurity.org/intell/world/pakistan/ncd.htm