MUHAMMAD HASSAN KHAN and another vs THE STATE

FAZLUR REHMAN KHAN, J.--- The learned Additional Sessions Judge-III, Peshawar by an order, dated 28-7-2006 has refused bail to the accused/petitioners in case F.I.R. No,374, dated 19-7-2006 of Police Station Daudzai, Peshawar under sections 6/9 of the Control of Narcotic Substances Act, 1997 read with sections 8/14 of the Dangerous Drugs Act, 1930 and now through this petition, they seek bail from this Court.

2. According to the contents of the F.I.R., there was prior information to the local police of Police Station Daudzai that huge quantity of coca-leaf would be smuggled from Gandaf, Tribal territory in Truck No,TKO-716 via Charsadda. On the receipt of this information, complainant Mashal Khan, S.-I.

Along with the police party laid a picket on Charsadda Road near the Petrol Pump of Noor Alam Khan. At about 6-30 a.m., the truck arrived at the spot, which was signalled to stop but instead of stopping it, the driver of the truck speeded it up. However, it was chased in official vehicle and at some distance was compelled to stop. At that time, Muhammad Hassan Khan, petitioner No,1, was driving the truck while Tasleem Khan, petitioner No,2 was sitting with him in the front seat. On checking of the truck, 150 bags, each containing 1 mound of coca-leaf were recovered. The bags and the truck were taken into possession and both the accused/petitioners were arrested.

3. I have heard Mr. Arshad Hussain and Mr. Javed Ali Shah, Advocates for the petitioner, Arbab Muhammad Usman Khan, the learned Additional Advocate-General for the State and have also perused the record.

4. In support of the bail petition, the learned counsel for the petitioners contended that the occurrence took place on 19-7-2006 and so far no samples have been taken and sent to the F.S.L.

For opinion as to whether the coca-leaf recovered from possession of the accused/ petitioners were having any intoxicating ingredients or not, as such, the case of the accused/petitioners is of further enquiry.

5. The argument of the learned counsel for the petitioners is not without force. Perusal of the record shows that in spite of a lapse of more than one and a half month, the complainant/Investigating Officer has failed to obtain samples from the coca-leaf recovered from possession of the accused/petitioners and to send the same to the F.S.L. For report, as such; the prosecution has yet to make out its case against the accused/petitioners and till then their case is of further enquiry.

6. It is observed that under the relevant Rules, such samples are to be taken and dispatched to the Laboratory for opinion within 74 hours but the Investigating Officer in this case has failed to do so in spite of the lapse of more than 1-1/2 months. This omission on the part of the complainant/Investigating Officer is either based on his mala fides or is the result of his gross negligence, both actionable. Huge quantity of coca-leaf has been recovered from possession of the accused/petitioners and if it is proved that the same had any intoxicating ingredients, then the law has provided severe punishment for the offenders. However, if it is proved that the coca-leaf had no such intoxicating ingredients as mentioned in section 2(h) of the Control of Narcotic Substances Act, 1997 and section 4(aa) of the Dangerous Drugs Act, 1930, then the case property will be merely empty-shells (Doda) of coca-leaf or its substance in crushed form and the accused/petitioners will be presumed to have committed no offence under the sections of laws, with which they are charged and their detention in the judicial lock-up would amount to illegal confinement.

7. Accordingly, this application is accepted and the accused/ petitioners are granted bail provided they furnish bail bonds in the sum of Rs,1,00,000 (Rs,one lac) each with two sureties each in the like amount to the satisfaction of Illaqa/Duty/Judicial Magistrate, Peshawar.

8. In pursuance of the above observations, a copy of this order shall be sent to the I.-G. Police N.- W.F.P., Peshawar in order to conduct an inquiry against Mashal Khan, complainant/Investigating Officer and if it is proved that not obtaining the samples and sending the same to the. Laboratory for opinion within the prescribed time is either based on his mala fides or is the result of his gross negligence, then suitable action shall be taken against him under the relevant Law/Rules within one month from the receipt of copy of this order, the result whereof, shall be intimated to this Court through its Additional Registrar (Judicial) for information.