LAHORE, May 20: A three-member bench of the Lahore High Court, through a split judgment, declared on Friday that most parts of the poppy plant, including its capsule (doda) are opium and their possession or recovery is punishable under the Control of Narcotics Substance Act, 1997.
This was the view of Justice Asif Saeed Khan Khosa and Justice Sardar Mohammad Aslam. The third member of the bench, Justice Ali Nawaz Chauhan, however, gave a different perception of the act holding that inclusion of poppy straw, essentially a chaff, into the definition of opium, had resulted in absurdities and iniquitous provisions of law and penalty.
The bench, however, referred as many as nine post-arrest bail petitions and writ petitions to the chief justice for the constitution of a larger bench to answer more legal questions raised in the petitions and also determine if the penalty provisions of the act were in any way in conflict with fundamental rights as ordained in the constitution.
As for the majority judgment, author Justice Khosa held that the counsel agreed to the point that the fluid oozing out of the capsule and other parts of poppy plant on incision is alkaloid which includes morphine and meconic acid which is dried into a brown substance to make opium. He formulated the questions like; what exactly is ‘poast’; if it is narcotics within the meaning of the act; and if a chemical examination is necessary to ascertain actual quantity of morphine in case of recovery.
Answering the first question, Justice Khosa observed that seeds contained in the capsule are free from morphine. Similarly, all parts of the poppy plant may not necessarily be part of ‘poast’ because poppy straw can be any other part of the mowed poppy plant as well.
As for the next question, the judge wrote that the act provides for opium and poppy straw as a narcotics drug whose trafficking, sale and smuggling is prohibited. Citing section 2(1)(i) of the act, the judgment said ‘poast’ or ‘doda’ is treated and accepted as narcotics and this includes any part of the poppy plant except seeds. Read with section 2(w), Justice Khosa said that the definition of opium extends to all parts of poppy plant whether they are the species known as Papaver Sominfernum. This is so defined in the law because opium can be extracted from all of them after mowing.
He also referred to the 1997 act which consolidated all such laws like the Opium Act of 1878, the Dangerous Drugs Act of 1930, the Control of Narcotics Ordinance of 1995 and the Prohibition (Enforcement of Hadd) Ordinance of 1979. The new act, which overrides al the enactments of the past, has omitted the words like ‘from which narcotics can be extracted’ and this means that all poppy plants except seed are not narcotics.
Referring to the provision of the act which allows the cultivation of poppy crop, Justice Khosa wrote that the permission is qualified to such poppy plants from which opium is not extracted. The plantation of cocoa bush, cannabis and other plants is allowed because they do not produce opium and are used for medical, scientific and industrial purposes under a validly issued license.
The court held as answer to the third question that vires of different sections of the act, particularly what was said to be harsh punishments, could not be brought into question on the touchstone of fundamental rights as stipulated by the constitution in the petitions moved for bail and other purposes. This would mean taking on the law itself which is not within the competence of the court which can only interpret the law. For constitutional issues and legal vires of the act, separate petitions are needed to be moved.
JUSTICE CHAUHAN: In his dissenting note, Justice Chauhan observed that the change in the definition has led to unjust and unreasonable punishments which are linked to the weight of the narcotics recovered. Section 9 of the act provides for two years in prison for the recovery of a substance less than 100 grams in weight. It rises to seven-year imprisonment with fine in case the weight is less than one kilogram. Any recovery of more than one kilogram is punishable with death or life imprisonment with a fine of a maximum of Rs1 million. Justice Chauhan observed that grouping together fully processed narcotics with traces of opium and poppy straws of any kind is unjust.
He also pointed out many flaws and anomalies in the act and said that it infringed on the fundamental rights and clearly violated principles of equality by way of discrimination and if any law was inconsistent with the basic spirit of the constitution, superior courts had the original jurisdiction to take notices and even strike down such an enactment. He observed that the provisions of the act were in conflict not only with fundamental rights but also with reason and common sense. As for the provision of the act which allowed cultivation of poppy and production of opium, Justice Chauhan observed it was anomalous.