25. Mode of making searches and arrest.--The
provisions of the Code of Criminal Procedure, 1898, except those of Section
103, shall, mutatis mutandis, apply to all searches and arrests insofar, as
they are not inconsistent with the provisions of Sections 20, 21, 22 and 23, to
all warrants issued and arrests and searches made under these sections.
COMMENTARY
Application of S. 103
Cr.P.C. has been excluded under the provisions of S. 25 CNSA, 1997. 2001 SCMR
36; 2001 MLD 1922.
Conviction and prayer
for reduction of sentence of imprisonment in appeal. Only 500 grams of charas
recovered from appellant. Whereas offence relating to 101 to 1000 grams are
covered by S. 9(b) of Narcotic Act, 1997. Maximum punishment cannot be awarded
in every case. Legislature has conferred discretion to award lesser or maximum
punishment. Appellant is not habitual criminal. Sentence reduced from 7 years
to 3« years keeping in view quantity recorded. PLJ 2001 Cr.C. (
Raiding party despite
having prior information did not bother to obtain search warrant from a
competent Court and conducted raid at the house of appellant without showing
any justification. Though Magistrate was in association with the raiding party
yet his presence was not sufficient to bypass mandatory provision of law and
the Constitution. No evidence on record that house was in exclusive possession
of accused. The bag containing charas was found lying in the courtyard of house
and his wife/co-accused who had been arrested at the spot, was subsequently
acquitted from the charge. Conviction & sentence set aside. PLJ 2008 SC
414.
Provision of Section
103, Cr.P.C. has no application to narcotic cases as per provision contained
under Section 25 of Act. Applicability of provisions of Section 103, Cr.P.C.
has been excluded in view of provision of Section 25 of Act. PLJ 2002 Cr.C. (
Section 25 of Control of
Narcotic Substances Act clearly exclude application of Section 103, Cr.P.C. to
cases under Control of Narcotic Substances Act, 1997. PLJ 2002 Cr.C. (
Application of S. 103,
Cr.P.C. to the offence under the Control of Narcotic Substances Act, 1997 has
been excluded by Section 25 of the Act. PLJ 2008 SC 465.
Contention that
provisions of Section 103, Cr.P.C. were seriously violated on account of
non-association of private person to witness recovery. Further contended that
truck was apprehended at a thickly populated place i.e. Gulshan Abad check post
and services of independent witnesses could have been secured without any
excuse. Submission of learned counsel is misconceived, firstly for the reason
that provisions of Section 103, Cr.P.C. has been excluded under provisions of
Section 25 of Control of Narcotic Substances Act, 1997 and provisions of
Section 20 of Act are directory in nature, therefore, its non-compliance cannot
be considered as a strong ground for holding trial of appellant as bad in eyes
of law whereas on other it is not denied that main aim and object of enacting
of Section 103 Cr.P.C. is to ensure that search and recovery was conducted
honestly and fairly and to exclude any possibility of concoction and
transgression. It never meant to disbelieve statements of official witnesses
under any circumstances. Official witnesses are as good as private witnesses.
Contention repelled. PLJ 2002 Cr.C. (
Recoveries allegedly
effected in violation of S. 103 Cr.P.C. Such allegation was devoid of force
inasmuch as, recovery of narcotic substances had been made in terms of S. 25 of
Narcotic Substances Act, 1997, which being a special statute excludes
application of S. 103 of Cr.P.C. However, Police officials being competent
witnesses their evidence cannot be excluded merely for the reason that they
were Police employees. PLJ 2003 Cr.C. (
The police or such other
agencies do not enjoy unlimited powers to make search of the house of a person
and disturb his privacy and dignity in violation of the Constitution. Member of
concerned agencies, without satisfying the requirement of law cannot enter into
residential premises without search warrant. PLJ 2008 SC 414.
Recovery of huge
quantity of narcotic substance from appellants. Report of chemical analyst
being positive corroborates evidence of witnesses of recovery. No prejudice was
shown to have been caused to appellants. Appellants have failed to make out any
case for interference in impugned judgment. PLJ 2003 Cr.C. (
Control of Narcotic
Substances Act, 1997, being complete code in itself, in presence of S. 25
therein, provision of S. 103 Cr.P.C. would not be attracted. PLJ 2004 Cr.C. (
Provisions of S. 103
Cr.P.C. have been excluded under provision of S. 25 of Control of Narcotic
Substances Act, 1997 and provision of S. 20 thereof, being directory in nature,
non-compliance of provision of S. 103 Cr.P.C. cannot be considered a strong
point for holding that trial of appellants was bad in eyes of law. Defence plea
that recovery witnesses being police officer, their evidence was not reliable
and should be discarded was repelled on the ground that police officers were
competent witnesses of recovery memo. Police Officers were as good witnesses of
recovery as private witnesses. PLJ 2004 Cr.C. (
There was no necessity
of any private witness as it is open to every body that public normally avoid
to become a witness to such proceedings. Provisions of S. 103 Cr.P.C. are
otherwise not applicable to cases under CNSA. PLJ 2004 Cr.C. (
Plea that no public
witness was associated in the recovery proceedings hence recoveries were
doubtful. Under Section 25 of the Control of Narcotic Substances Act, 1997 the
Provisions of S. 103 Cr.P.C. stand specifically excluded. PLJ 2005 Cr.C. (
Application of S. 103
Cr.P.C. has been excluded by S. 25 of Control of Narcotic Substances Act 1997,
which has over-riding effect. PLJ 2005 Cr.C. (