PESHAWAR: A resident has moved the Peshawar High Court against the enactment of a special anti-narcotics law by the provincial government insisting that in the presence of the federal government’s Control of Narcotics Substance Act, 1997, a provincial law on the subject couldn’t be enacted.

Asmatullah of Peshawar filed the petition requesting the court to declare that the KP Control of Narcotics Substance Act (KPCNSA), 2019, is unconstitutional, illegal, without jurisdiction and against the fundamental rights guaranteed by the Constitution.

He sought as an interim relief the suspension of the operation of the law until the final disposal of the petition.

Respondents in the petition are the provincial government through the chief secretary, provincial secretaries of the law and establishment departments, federal law secretary, and the provincial assembly’s secretary.

Petitioner insists federal law on matter exists, so KP’s is against constitution

The KPCNSA was passed by the provincial assembly on Aug 27 and received the governor’s assent on Sept 2.

While passing the law, the government had claimed that it had incorporated specific provisions for checking the growing use of Ice drug in the province.

The petitioner’s lawyer, Noor Alam Khan, is an expert on narcotics laws.

The petitioner said the federal government had enacted a comprehensive law called Control of Narcotics Substance Act (CNSA), 1997, and had provided therein special provisions for curbing the menace of narcotics.

He said the onus to prove the guilt of accused had not been placed entirely on the prosecution rather on the accused to prove his innocence as well.

The petitioner said the CNSA, 1997, was a very rigid special law wherein extreme punishment of death or imprisonment for life had been provided.

He added that the provision of bail had been ousted by the CNSA, while the vehicles used in the offence were also confiscated to the State.

The petitioner said despite the presence of the CNSA, the provincial government recently passed the KPCNSA.

He said the CNSA, 1997, had already been extended to whole of Pakistan, so in its presence, the provincial assembly had no authority to pass a law on same subject.

The petitioner said although the Concurrent Legislative List of the Constitution had been omitted from the Constitution through the Constitution (Eighteenth Amendment) Act, 2010, a mini concurrent list continued to exist in Article 142 relating to criminal law, criminal procedure and evidence and therefore, any law made by a provincial legislature on those subjects would be against Article 143 of the Constitution, while the federal law on the subject would prevail.

Advocate Noor Alam Khan said under the doctrine of ‘occupied field’, the federal law of narcotics was already there and applicable to the entire Pakistan, which had been implemented by well-trained and experienced officers of the Anti-Narcotics Force, so the enactment of new law manifested the mala fide intent on part of the provincial government.

He said the impugned KPCNSA would only be applicable to the province, whereas rest of the country would be covered by the federal CNSA that was a clear violation of Article 25 of the Constitution.

Published in Dawn, November 1st, 2019