PESHAWAR: The Khyber Pakhtunkhwa government has promulgated an ordinance for removing several flaws from a new provincial anti-narcotics law, whose enforcement led to the flooding of the Peshawar High Court with narcotics-related petitions seeking bail for the suspects.

The KP Control of Narcotics Substance (Amendment) Ordinance, 2020, which was published in the official gazette on Jan 31, introduces several amendments to the KP Control of Narcotics Substance Act (KPCNSA), 2019, including the provision of bail to the people arrested in connection with narcotics trafficking.

One of the two reasons of an indefinite strike recently observed by the lawyers across the province was the flaws in the KPCNSA.

Another reason of the strike, which began on Jan 8 and lasted until Jan 30, was the recent amendments to the Code of Civil Procedure.

However, an ordinance promulgated by the provincial government on Jan 28 deferred the enforcement of those amendments until Apr 15 prompting the KP Bar Council to call off the strike conditionally.

Suspected drug peddlers entitled to bail, courts working under CNSA 1997 allowed to hear cases

The council had announced that the lawyers would boycott courts on every Tuesday for a month due to a delay in changes to the KPCNSA and would decide the future course of action thereafter.

The government has met the lawyers’ that demand, too, by promulgating the new ordinance. It is expected that before the expiry of the constitutional life of three months of the ordinance, it would be placed before the provincial assembly for making it an Act of the assembly.

The enactment of the KPCNSA in Sept 2019 has caused a substantial increase in the population of the Peshawar Central Prison as well as other prisons of the province as suspects even arrested with a meagre quantity of narcotics have to remain behind bars for many months.

As the arrested suspects had no option available in the new law to apply for bail, they have to move the high court under its constitutional jurisdiction provided in Article 199 of the Constitution. Some petitioners were arrested for possessing one gram of methametaphine commonly known as ice or crystal meth.

Through the KPCNSA, the relevant federal law, Control of Narcotics Substance Act 1997, was repealed in Khyber Pakhtunkhwa to the extent of cultivation, possession, selling, purchasing, delivery and transportation of narcotics.

Under Section 26 of the original Act, the Code of Criminal Procedure was applicable only to trials and appeals before the special court. Now, the ordinance declares that the CrPC shall be applicable to all proceedings under the new law except as otherwise provided in the Act.

Similarly, a bail related sub-section has now been included in the Act, which states: “In the case of offences punishable under this Act, bail shall not ordinarily be granted unless the Court is of the opinion that it is a strong case for the grant of bail and against the security of a substantial amount.”

Moreover, Section 22 of the KPCNSA provides for establishment of special courts and appointment of judges by the provincial government after consultation with the Chief Justice of the PHC. Now the said section is amended and a sitting judge could be designated or conferred as special court.

Even five months after the law was enacted, the government hasn’t set up a single special court in the province.

Similarly, section 33 of original Act provided that any person arrested and articles seized under this Act shall be produced within 24 hours of the arrest or seized, before the special court.

As the Act repealed the federal law, Control of Narcotics Substance Act 1997, confusion persisted whether in the absence of special court under the provincial Act, a suspect could be produced before the special courts functioning under the federal law.

Now, the ordinance empowers the court functioning under the CNSA 1997 to continue to entertain and dispose of the matter under the provincial Act until the establishment or designation of special court through the latter law.

Published in Dawn, February 2nd, 2020