Khushal vs State S — 2025 PCrLJ 1557 PESHAWAR-HIGH-COURT

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Khushal VS State S. 497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S.9(D)---Possession of narcotic substance---Bail, grant of---Further inquiry---Prosecution case was that 717-grams Ice was recovered from the shopping bag held by petitioner in his hand---Legislature has amended Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 (hereinafter referred to as the Act) through Khyber Pakhtunkhwa Control of Narcotic Substances (Amendment) Act, 2025, wherein sentence for contravention of S.10 of the Act has been amended and for possessing psychotropic substance of quantity ranging from 100 grams to 500 grams new punishment of 5 years along with fine had been provided---One of the effects of reduction of sentence would naturally be relating to grant of bail---Earlier S.11-B of the Act 2019 was providing sentence of imprisonment for not less than 10 years for possessing a quantity of methamphetamine ranging from 100 grams to one kg---Earlier the offence was falling under the prohibitory clause of S.497, Cr.P.C, while by now such an offence did not fall under the prohibitory clause of S.497, Cr.P.C---Although the new Act was promulgated and published in Official Gazette on 27.03.2025 while the occurrence in case in hand had taken place on 24.03.2025 and due to said reasons the Act could not be applied to the offence in hand---However one aspect of the matter required consideration that at bail stage this Court was receiving bail application from two sets of accused i.e., one against whom cases had been registered before promulgation of the Amending Act of 2025 and the other class was of those persons, against whom similar cases in similar quantity had been registered after promulgation of the Amending Act 2025---In these circumstances, question arose i.e., whether persons in same class could be differentiated while granting bail to two sets of classes---Grant of bail is a discretionary relief---Section 26 of the Act provided that provisions of Cr.P.C would be applicable to proceedings under this Act except as otherwise provided in the Act---Thus, it was clear from said provision that Special Court could grant bail when it reached the conclusion that the case was prima facie fit for grant of bail---No cavil with the proposition that the amended Act would not be ipso facto applicable to cases registered prior to promulgation of the Act however, when the matter came to exercise of jurisdiction, then two classes of accused could not be differentiated---Court could not choose and set free on bail those inmates of jail kept in custody in narcotics case, against whom cases had been registered after promulgation of amended Act and could not leave the other class of accused in similar quantity (of less than one kg methamphetamine) to remain in jail, which could not be done in exercise of discretionary powers---Bail petition was allowed, in circumstances.

Khushal vs State S — 2025 PCrLJ 1557 PESHAWAR-HIGH-COURT

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