MOULADAD alias BABA vs THE STATE
This bail application concerns an accused charged under Section 9(b) of the Control of Narcotic Substances Act, 1997, for the alleged possession of 1 kg of Charas. The core legal question was whether the unexplained delay in sending the recovered narcotic specimen to the Chemical Examiner, combined with the nature of the offence, entitled the accused to the concession of bail. The Court observed that the specimen was withheld for approximately 43 days before reaching the Chemical Examiner, and the prosecution failed to provide a reasonable explanation for this delay or account for the safe custody of the sample during that period. Holding that this unexplained delay cast doubt on the genuineness of the recovery, and noting that the offence did not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898, the Court granted bail. The key principle laid down is that an unexplained and significant delay in transmitting a narcotic sample to the Chemical Examiner creates doubt regarding the integrity of the recovery, justifying the grant of bail.
- Does an unexplained delay in sending a narcotic sample to the Chemical Examiner justify the grant of bail?
- Is the offence under Section 9(b) of the Control of Narcotic Substances Act, 1997, considered to fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898?
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' WAHID BUX BROHI, J.---Applicant Mouladad alias Baba is being tried for an offence punishable under section 9(b) of the Control of Narcotic Substances Act, 1997.
2. ' According to F.I.R., SIP Anwar Akbar of Kalakot Police Station was on patrol when he received advance information and proceeded to the given spot where he apprehended the applicant and on his search secured a plastic bag containing 1 Kg. Charas which was concealed in the shirt. A piece of 10 grams was drawn as specimen and after preparing seizure memo. The accused and property were taken to the Police Station where F.I.R. Was lodged.
3. ' We have heard Mr. Abdul Ghaffar Samo learned counsel for applicant and Mr. Habib Ahmed learned A.A.-G.
4. ' Learned counsel for applicant contended that despite advance information no independent person was found to witness the recovery particularly when the place of incident was a thickly populated area of Karachi. He further contended that the specimen was withheld for a period of 43 days and then delivered to Chemical Examiner for which no explanation available on record and as such genuineness of the recovery has become doubtful. He also argued that the offence does not fall within the prohibitory clause of section 497, Cr.P.C. Mr. Habib Ahmed learned A.A.-G.
5. Opposed the bail but, however, he was not be able to find out any reasonable explanation from the record to justify withholding of specimen for a period of about 43 days.
6. ' In order to appreciate the second contention with regard to delay in delivery of the sample to Chemical Examiner, we had called the Investigating Officer to furnish any apparent explanation but the only answer is that the specimen was deposited in the Malkhana and it was for the subordinate staff of the police station to dispatch the same.
7. On perusal of the Chemical Analyser's report dated 18-6-2004 it is noted that the Chemical Examiner received the specimen from P.C. Liaquat Ali under a letter dated 23-1-2004. Apparently the police dispatched the specimen to the Chemical Analyser on 13-1-2004 and delivered it to P.C.
8. Liaquat Ali to hand it over to Chemical Analyser. The Chemical Analyser could have received the specimen on the same day or at the most on the next day but P.C. Liaquat delivered the same to Chemical Analyser after 40 days. Where the specimen remained during this period what was status of its safe custody, are the important factors yet to be explained, therefore, for the time being we are convinced that on this ground coupled with plea that the offence does not fall within the prohibitory clause of section 497, Cr.P.C., the applicant deserves concession of bail.
9. ' Consequently, the bail plea is accepted and the application is allowed. The applicant be released on furnishing security in the sum of Rs.1,00,000 and executing P.R. Bond in the like amount to the satisfaction of trial Court.
Cited by 3 cases
- SHAH MEHMOOD alias SHAHU vs THE STATE 2012 YLR 1403
- WAHEED RAZA PATHAN vs THE STATE 2011 YLR 2760
- BAHAWAL alias NAANG Versus State 2011 PCrLJ 1200