Violation of the provision of section 21 and 22 of the Act needs to be dealt with. Ordinarily, only an officer of the rank of SubInspector or equivalent or above may exercise the powers of arrest and seizure of narcotics

9. Section 21 of the Act of 1997 (almost ditto copy of section 28 of the Act of 2019), has remained the point of discussion before the august Supreme Court of Pakistan in different cases. Useful reference can be made to case titled, “Muhammad Younas and others vs Mst. Perveen alias Mano and others” (2007 SCMR 393), wherein the august Supreme Court was pleased to hold that arrest of accused in possession of narcotics by a Police Officer below the rank of Sub-Inspector would not vitiate the prosecution case, rather the competent Court would proceed to determine the guilt or innocence of the accused on the basis of evidence, irrespective of the manner in which he is brought before the court. The relevant portion of the judgment (supra) is reproduced below:- 

“The other argument of the learned counsel for the respondent No.1 as to the violation of the provision of section 21 and 22 of the Act needs to be dealt with. Ordinarily, only an officer of the rank of SubInspector or equivalent or above may exercise the powers of arrest and seizure of narcotics. But this is not an absolute rule. There may be cases of extreme urgency requiring prompt action, where an accused is caught with narcotics in his possession by a Police Officer of a lower rank. Can it be said that such Police Officer should just let him go with the narcotics? The answer would certainly be in the emphatic “No”. The guilt or innocence of an accused does not depend on the question of competence or otherwise of a Police Officer to investigate the offence. A trial of an accused is not vitiated mere on the ground that the case has been investigated by an officer who is not authorized to do so unless a contrary intention appears from the language of a statute. The competent Court would proceed to determine the guilt or innocence of an accused on the basis of the evidence produced before it irrespective of the manner in  which he is brought before it. A somewhat similar view was taken in the cases of “Mr. Abdul Latif Vs GM Paracha and others” (1981 SCMR 1101), “State through Advocate General Sindh Vs Bashir and others” (PLD 1997 SC 408), “The Crown vs Mehar Ali” (PLD 1956 FC 106), “ M.S.K Ibrat Vs the Commander in chief, Royal Pakistan Navy and others” (PLD 1956 SC 264), “Ahmad Khan Vs Rasul Shah and others” (PLD 1975 SC 66 at page 81, 88and 151-152), “Muhammad and others Vs the State” (1984 SCMR 954) and “the State vs Sohail Ahmed and 04 others” (PLD 1990 FSC 29). We may however observe that in a proper case, a Police Officer, if guilty of deliberate usurpation of power and violation of a statute may render himself liable to disciplinary or penal action or both in accordance with law. The purpose of enacting protective provisions of sections 21 and 22 of the Act seems to be that normally the cases of narcotics being of serious nature should be handled by more responsible Police Officer. (emphasis supplied).

Part of judgment of 

IN THE PESHAWAR HIGH COURT, PESHAWAR,

Cr.Misc No. 1540-P of 2020 Ismail Vs The State