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June 22, 2021

Excise police have no power to prosecute persons arrested under narcotics substances law: SHC

The Sindh High Court has held that the excise police have no powers to prosecute and deal with persons arrested under Section 21 of the Control of Narcotics Substance Act except to hand over such persons with seized articles to the nearest police station.

Issuing the judgment on an appeal of a man against life imprisonment after he was arrested and prosecuted by an excise police inspector, a high court division bench, headed by Justice Nazar Akbar, observed that whoever arrests any person and seizes narcotics in exercise of powers conferred under the ministry of narcotics control’s notification shall immediately hand over both the suspects and case property, including the vehicle if any, involved in crime to the nearest police station forthwith.

The court held that whoever detains any person, seizes an article under Section 20 or Section 21 of the CNS Act and takes the suspect to any place, including the excise police station or any other police station, under the special law except in the local police station near the crime scene or the CNS police station shall be guilty of illegal detention of such a person and arresting authority and the SHO of such a police station shall be proceeded against for keeping the person in illegal custody.

It further observed that excise department shall ensure that illegality committed by the excise police in the prosecution of cases under the CNS Act should be stopped forthwith and the investigation and prosecution of all pending cases registered by the excise department in exercise of powers and functions under Section 21 (1) of the CNS Act may be assumed/transferred to the local police according to the place of the crime to deal with menace of narcotics and its trafficking strictly in accordance with the CNS law.

Appellant Akhtar Meen was arrested by excise and taxation police officer Sheraz Gul Thebo on September 4, 2019 in Nazimabad on spy information, and the excise police claimed to have seized 13 kilograms of charas from a rickshaw of Akhtar. The trial court had sentenced the appellant to life imprisonment on October 26, 2019, on the basis of the testimony of the excise and taxation officer and one witness.

The court, after perusal of the record of the case, observed that everything in the case has been done singlehandedly by the additional excise and taxation officer, from receiving the purported spy information, forming a raiding party, conducting a search and arresting the suspect, to lodging an FIR as complainant and assuming the role of an investigator.

The court observed that the notification of the ministry of narcotics control with regard to the conferment of powers to the excise and police department and other federal government-controlled agencies to conduct an investigation of the offence under the CNS law. It said the investigation officer did not interrogate the owner of the rickshaw and prima facie found him guilty of impliedly conniving with the accused.

The court set aside the conviction of the trial court and observed that action taken by the excise officer against the appellant after his arrest and the alleged seizure of charas while performing functions under Section 21 (1) of the CNS Act was illegal and without lawful authority.

The court also directed the director general of the excise and taxation department to take strict disciplinary action against the excise officer for his failure to follow the basic criminal law, from the registration of ab FIR to the arrest and recovery of narcotics, illegally forwarding the appellant for detention in the excise police station, failure to investigate the case under the CNS law and preparing documents under his own attestation.

It said the excise department shall ensure that the illegality committed by the excise police in the prosecution of cases under the CNS Act should be stopped forthwith and the investigation and prosecution in all pending cases registered by the excise department in exercise of powers and function under Section 21 (1) of the CNS Act may be assumed/transferred to the local police according to the place of the crime to deal with the menace of narcotics and its trafficking strictly in accordance with the CNS law.

The court directed the excise department to submit details of the pending cases registered by the excise police under sections 6,7,8 and 9 of the CNS Act, and said the pending cases’ investigation should be transferred to the local police strictly according to Section 27 of the CNS Act through the member inspection team for perusal.