MUMTAZ vs THE STATE
This matter concerns a post-arrest bail application filed by the applicant Mumtaz, who was implicated under Section 9(b) of the Control of Narcotic Substances Act 1997 following his arrest alongside others in a graveyard, where 115 grams of Charas and cash were allegedly recovered from his possession. The core legal questions before the High Court were whether the applicant was entitled to bail given that the offence under Section 9(b) does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898, and whether the non-association of private Mashirs despite advance spy information rendered the case one of further inquiry. The High Court, taking into account the facts, circumstances, and the concession of the State Counsel, granted bail subject to the applicant furnishing a solvent surety and P.R. bond. The principle affirmed is that where an offence carries a sentence outside the prohibitory clause and the investigation lacks independent corroboration, bail may be favourably considered.
- Whether an offence under Section 9(b) of the Control of Narcotic Substances Act 1997 falls within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Does the failure of police to associate independent private Mashirs after receiving advance spy information make a case fit for further inquiry?
- Can bail be granted to an accused facing trial for possession of 115 grams of Charas when the State Counsel concedes to the grant of bail?
- Section 9-A, Control of Narcotic Substances Act 1997
- Section 9(b), Control of Narcotic Substances Act 1997
ORDER
1. ' Allegation against the present applicant is that he alongwith 5 others was found sitting in the graveyard of Mohsin Shah near Railway ,Line when police reached there after receiving spy information while patrolling in the city that some persons were selling Charas at the said pointed place. It is alleged that out of the six (6) persons one person namely Ashiq son of not known made his escape good whereas applicant and 4 others were arrested with the help of police staff. As a result of personal search 115 grams of Charas and four currency notes of Rs,10 each were recovered from his possession. The material was sealed at the spot and 10 grams out of the same was separated for being referred to the Chemical Analyzer. So far other 4 persons are concerned, it is stated that less than 100 grams Charas was recovered from each of them, hence they were sent up to face their trial under section 9-A of CNS Act, 1997 in the Court of Judicial Magistrate where according to Mr. Shafi Muhammad Memon they are facing their trial whereas present applicant has been sent up under section 9(b) and facing trial before Special Judge (CNS), Dadu. His bail application has been rejected by the learned Sessions Judge, Dadu on 18-5-2004.
2. ' Mr. Shafi Muhammad Memon learned counsel for the applicant has mainly argued that the offence does not fall within(?) the prohibitory clause as it is punishable with a maximum imprisonment upto 7 years. He has further, argued that despite receiving spy information well in advance in the city, no one was either associated or tried to be associated as a Mashir, so that the arrest and recovery 'proceedings could become authenticated. Learned counsel has further argued that in fact the applicant has been involved in this case due to some enmity with local A police and that it is a case of further inquiry.
3. ' On the other hand, Mr. Habib Ahmed learned State Counsel keeping in view all the facts and circumstances of the case has rightly conceded to the grant of bail..
4. ' We feel inclined to order for release of the applicant on bail provided he furnishes one solvent surety in the sum of Rs,1,00,000 and P.R. Bond in the like amount to the satisfaction of the learned trial Court.