PESHAWAR: Declaring illegal the detention of five suspected drug peddlers under the Maintenance of Public Order Ordinance, the Peshawar High Court ordered the Swat district administration to release them without delay.

It also ruled that the district administration could deal with suspected drug pushers under the relevant anti-narcotics law.

A bench consisting of Justice Mohammad Naeem Anwar and Justice Mohammad Ijaz Khan accepted five petitions separately filed by detainees Hayat Khan, Adalat Khan, Akhtar Ali, Umar Ali and Fazal Qadir and set aside the orders by Swat’s deputy commissioner for their detention last month.

While ordering the detention of the petitioners, the deputy commissioner had said he had received report from the district police officer (DPO) about their involvement in drug peddling and that they didn’t “mend their ways, which is negatively affecting the peace and order of the order.”

PHC declares suspects can be dealt with under narcotics law

He had added that having considered the material placed before him, he was of the opinion that presence of those ‘drug pushers’ in the district was prejudicial to the public safety and maintenance of public order, so it was necessary to issue warrants for their arrest under Section 3(1) of the MPO. He had ordered their detention for a period of 30 days.

Almost identical judgements spread over eight pages each were released in the five petitions, wherein the bench observed that the MPO Ordinance, 1960, was enacted to provide a law for preventive detention and control of persons and publications for reasons connected with public safety, public interest and the maintenance of public order.

Quoting the preamble and Section 3 of the MPO, the bench observed that that section of law under which the petitioner was arrested provided that where the government was satisfied to prevent any person from acting in any manner prejudicial to the public safety or the maintenance of public order, then in such like eventuality that person could be arrested and detained for a specified period.

It questioned whether character of the petitioner would be an act, which could qualify the essential ingredients for constituting a ground to press into service Section 3 of the ordinance, which speaks that any person who was acting in any manner prejudicial to the public safety or the maintenance of public order?

The court ruled that ‘such’ character of the petitioner could not constitute the essential ingredients of public safety or public maintenance, which were required for issuance of an order of preventive detention, therefore by applying a plain meaning, the allegation so levelled could not be sufficient to justify the arrest and detention of the petitioner.

“It is also relevant to mention here that the Khyber Pakhtunkhwa Control of Narcotics Substance Act, 2019, was an exhaustive law, which provides a complete and comprehensive mechanism for the trial of those offenders, who are involved in business of narcotics,” the bench observed adding that the alleged act of the petitioner was governed by that special narcotics law.

The bench ruled that in the cases in hand, the court found that the alleged act of the petitioner had got no nexus with the purpose and object of the MPO.

“If the government wants to deal with him, they have at their disposal a robust legal regime in the form of the Khyber Pakhtunkhwa Control of Narcotics Substance Act, 2019, and the Prohibition (Enforcement of Hadd) Order, 1979, wherein the legislature has taken care to deal with all aspects of the business in trade of narcotics,” it observed.

The bench added that even if the petitioner was found to have been dealing with any such business of selling narcotics, he might have been dealt with under the provisions of that law.

“Recourse to the provision of Section 3 of the MPO was not at all justified in the circumstances of the case,” it declared.

The bench also observed that where a complete and comprehensive mechanism for the trial of those offenders had been

provided, it would not be open to the district administration to also use such charges as a ground for preventive detention under the MPO and therefore, it concluded that it was an improper and unreasonable exercise of powers to issue orders of preventive detention.

Published in Dawn, July 13th, 2022