ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD
Cr. B.A. No. S- 775 of 2016
DATE ORDER WITH SIGNATURE OF JUDGE
23.12.2016
For hearing
None present for applicant
Mr. Shahzado Saleem Nahiyoon, APG
Through instant Criminal Bail Application, under Section 497 Cr.P.C., applicant/ accused seeks his release on post arrest bail in FIR No. 132 of 2016 registered at police station Sakrand for offence under Section 9(c) Control of Narcotic Substance, Act, 1997.
2. The applicant approached the trial court with same plea which was declined by the learned Special Judge CNS / Sessions Judge, Shaheed Benazirabad vide order dated 2.9.2016.
3. It is alleged that the applicant was apprehended by the police of PS Sakrand and secured 1200 grams of charas from his possession for which present FIR was lodged.
4. In the bail application, the accused has contended that the case against him is false and fabricated and has been involved falsely and malafidely by the police; that the applicant is student and his remaining in jail with other criminals will spoil his future; that the alleged recovery has been foisted upon him; that chemical report still has not received as to whether the alleged recovered substance is Charas or not; that the trial Court has failed to consider that alleged quantity of 1200 grams of Charas is on the borderline of 9(c) CNS Act so it means that it can fall within the scope of section 9(b) CNS Act, 1997, which does not fall within the ambit of section 497, Cr.P.C, while keeping the quantum of sentence; that there is violation of section 103 Cr.P.C. though alleged place of recovery is thickly populated area; that the applicant is neither previous convict nor criminal nor hardened and is first offender and no history of like cases; that the case has been challaned and the applicant is no more required for further investigation; that the applicant prayed for grant of bail.
5. Conversely, learned APG has frankly conceded to the grant of bail to the applicant/ accused.
6. Admittedly, the applicant is nominated in the FIR but quantity of alleged charas recovered from his possession is 1200 grams of charas which is borderline case of Section 9(b) and 9(c) of Control of Narcotic Substance Act, 1997. The offence for which the applicant is charged is punishable upto 07 years and does not fall within the prohibitory clause of Section 497 Cr.P.C. All the witnesses are police officials. The applicant is in custody and is no more required for further investigation. Case of applicant calls for further inquiry. It has been held in the case reported in 2011 P.Cr.L.J as under:-
It is settled law that at the bail stage deeper appreciation of evidence cannot be gone into and only it is to be seen as to whether applicant is prima facie connected with the commission of offence or not. It is admitted position on record that only 1300 grams of charas was recovered from the applicant out of which 300 grams were referred for chemical examination, but the report of Chemical Examiner says that instead of 300 grams laboratory had received 270 grams of charas. It is also admitted position on record that as per F.I.R. encounter has been shown between the police and accused party, but no injury was sustained by either party. It has been consistent view of the superior Courts that in cases where recovery of substance does not exceed the limit between 900 to 1500 grams it has been held by the superior Courts that the case being of borderline between clauses (b) and (c) of section 9 of Control of Narcotic Substances Act, 1997 and invariably in. all cases applicants have been admitted to bail.
It has also been held by Honourable Court in the case of ‘Gul Hassan Dero v. The State’ (2000 P Cr. L J 657) as under:-
“The case of the applicant would fall under subsection (c) of section 9 of the Act as the quantity of narcotic substance exceeds one kilogram and does not exceed 10 kilograms.
The embargo contained in section 51 of the Act, came under thorough discussion before the Honourable Supreme Court and it was unanimously held by their Lordships that despite the provision contained in section 51 of the Act, the Courts of Sessions and High Courts have the power to grant bail.
The factor that according to the case of prosecution 1500 grams of Charas and 500 grams of heroin were recovered from the applicant, whereas as per Chemical Examiner’s Report the said quantity was consisting of 1200 grams of Charas and 400 grams of heroin requires further probe as to which one out of the two is correct.
For the foregoing discussion, we are of the considered opinion that embargo of section 51 (1) would not apply to this case and the allegation against the applicant requires further inquiry as contemplated under subsection (2) of section 497, Cr.P.C.”
It has also been held by Honourable Court in the case of ‘Gul Taj Ali Khan v. The State’ (2004 Y L R 439) as under:-
“Not only because the quantity of 500 grams marginally exceeds the upper limit of 1000 grams, therefore, being a border line case between clause ‘B’ and ‘C’ of section 9 and also because in the given circumstances whether maximum punishment of 14 years provided in the alternative would be awarded or not is also a point of discussion and further inquiry,. Also from the record it is not established that he is a previous convict or involved in the same and similar offence in the past.”
It has also been held by Honourable Court in the case of ‘Gul Rayasat Ali v. The State’ (2005 Y L R 1862) as under:-
“Mr. Samo has contended that according to Mashirnama of recovery and F.I.R., 1100 grams of Charas were recovered from the possession of applicant Rayasat Ali, while according to the Chemical Examiner’s Report, the net weight of entire Charas was 978 grams. There is discrepancy of 122 grams for which there is no explanation. He has further submitted that the applicant is a businessman and has been falsely implicated because of enmity with Pak Colony Police. He has further submitted that there is a delay of 17 days in sending the sample to Chemical Examiner. The alleged recovery is dated 13.10.2004 and the sample has been sent on 1.11.2004. The learned counsel has submitted that the applicant is entitled to the benefit of doubt even at the bail stage and consequently, he is entitled to be released on bail, as it is a case of further inquiry, as envisaged under subsection (2) of section 497, Cr.P.C. He has further pointed out that even the trial Court has observed that, difference in two weights can be resolved after recording of evidence of complainant.”
It has also been held by Honourable Court in the case of ‘Mahboob Ali v. The State’ (2007 Y L R 2968) as under:-
“The contraband charas weighing 1010 grams has been recovered from the possession of applicant during the reaid. The quantity of 1010 grams marginally exceeds the limits of thousand grams, therefore, a borderline case in between clauses “b” and “c” of section 9 of Control of Narcotic Substance Act, 1997 is a point of discussion and further enquiry to determine the guilt of the applicant. The applicant / accused was arrested on 3.9.2006 and the case has not been fixed for recording the evidence by the trial Court as pointed out by learned ocusnel for the parties.
In view of the foregoing reasons and the case-law cited at the bar and no objection of the learned State Counsel, we are of the view that the applicant’s case requires further inquiry as contemplated under section 497 (2), Cr.P.C.”
It has also been held by Honourable Court in the case of ‘Gulab Hussain v. The State’ (2009 Y L R 189) as under:-
“The recovery has allegedly been made from the petitioner in a rain stationed at Railway Station Kohat, a busy place but none among the public has been associated with the recovery proceedings. The charas recovered is 1200 grams which by margin exceed 1000 gram. The Court while seized of the bail application has also to keep in mind the maximum sentence likely to be awarded to the accused. In this case the record does not show that the accused is a previous convict or involved in such like cases. Thus, in view of the dictum laid down in the case of Noor Ali Khan v. The State and other reported in 2003 MLD 1637 (Peshawar). The accused / petitioner is entitled to the concession of bail”
It has also been held by Honourable Court in the case of ‘Ayaz v. The State’ (2011 P Cr. L J 177) as under:-
“It has been consistent view of the superior Courts that in cases where recovery of substance does not exceed the limit between 900 to 1500 grams it has been held by the superior Courts that the case being of borderline between clauses (b) and (c) of section 9 of Control of Narcotic Substances Act, 1997 and invariably in all cases applicants have been admitted to bail”
It has also been held by Honourable Court in the case of ‘Sherin Muhammad v. The State’ (2006 P Cr. L J 726) as under:-
“The contraband Charas weighing 1130 grams has been recovered from the house of the petitioner during raid. The quantity of 1130 grams marginally exceeds the limit of thousand grams, therefore, being a border line case between clause “8” and “C” of section 9 of Control of Narcotic Substances Act, 1997, is a point of discussion and further inquiry to determine guilt of the petitioner. Taj Ali Khan v. The State 2004 YLR 439 (Peshawar). Further, the contraband Charas alleged to have been recovered on 11.12.2005, report of the Chemical Examiner has not been received so far. The petitioner is the first offender and he is in jail ever since his arrest on the aforesaid date i.e. 11.12.2005. The application is accepted and the petitioner is directed to be released on bail on furnishing bail bonds in the sum of Rs.3,00,000 with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate”
7. For the foregoing reasons, the applicant has succeeded to make out his case for bail. Accordingly by short order dated 23.12.2016 passed in Court, the applicant / accused was granted bail, subject to his furnishing solvent surety in the sum of Rs.50,000/- to the satisfaction of trial Court.
JUDGE
karar/Ps