NOOR HABIB vs THE STATE
This is a criminal bail application arising from a matter registered under Section 9 of the Control of Narcotic Substances Act, 1997, where five kilograms of charas was allegedly recovered from the residential room of the accused-petitioner. The core legal question revolved around whether the petitioner was entitled to post-arrest bail considering questions of conscious possession, non-compliance with search and seizure provisions, lack of independent witnesses from the locality under Section 103 of the Code of Criminal Procedure 1898, issuance of search warrants by a Judicial Magistrate instead of the Special Court under the Control of Narcotic Substances Act, 1997, and a significant unexplained delay in sending the recovered samples to the Forensic Science Laboratory. The Peshawar High Court accepted the application and held that the petitioner made out a case for further inquiry, granting him post-arrest bail upon furnishing suitable securities. The key principle laid down is that procedural lapses regarding search warrants, failure to associate local witnesses, and unexplained delays in sending chemical samples to the laboratory create sufficient room for further inquiry, justifying the release of an accused on bail.
- Whether the recovery of contraband from a residential house jointly occupied raises a question of conscious possession warranting further inquiry for bail?
- Does a delayed transmission of narcotic samples to the Forensic Science Laboratory without explanation entitle the accused to bail?
- Whether non-association of independent witnesses from the locality during a narcotics raid affects the case for bail?
- Section 9, Control of Narcotic Substances Act, 1997
- Section 20, Control of Narcotic Substances Act, 1997
- Section 103, Code of Criminal Procedure 1898
- Section 22, Prohibition (Enforcement of Hadd) Order, 1979
1. ' TALAAT QAYUM QURESHI, J.-Having been involved in a case registered vide F.I.R. No, 86 dated 6-2- 2007 under section 9 of the Control of Narcotic Substances Act, 1997 at Police Station, Tehkal, Peshawar, the accused- petitioner applied for his release on bail in the Court of learned Sessions Judge, Peshawar which was entrusted to Additional Sessions Judge-X, Peshawar, who dismissed the application vide order dated 14-4-2007. He has now filed the application in hand before this Court for his release on bail.
2. ' Mr. Sahibzada Riazat-ul-Haq, Advocate, the learned counsel representing the accused-petitioner, argued that the alleged recovery of contraband charas has not been effected from direct and conscious possession of the petitioner, rather the same has been recovered from the residential room of the house, therefore, it is yet to be determined as to whether the petitioner is exclusive owner of the house wherein other family members are also residing.
3. ' It was also argued that the search warrant was not obtained either from the learned Judge, Special Court or from the learned trial Court as required under S.20 of the Control of Narcotic Substances Act, 1997, therefore, the said provision of law has been violated.
4. ' It was further argued that prior to raid no lady constable was accompanied with the raiding party and the words 'lady constables' have been subsequently overwritten in the murasila, hence the accused-petitioner is entitled to be released on bail.
5. ' On the other hand, Mr. Obaidullah Anwar, the learned Addl. A.-G. Representing the State, argued that five (05) Kgs. Charas (pukhta) has been recovered from the room of house of the accused- petitioner, where he was residing.
6. ' It was also argued that the F.S.L. Report available on file is in positive, therefore, the accused- petitioner is not entitled to the grant of bail.
7. ' I have heard the learned counsel for the parties at length and perused the record.
8. ' The complainant, Rajab Ali Khan, S.H.O., Police Station, Tehkal, along with other police, on receipt of prior information that the petitioner was selling charas in his house, raided the same, as a result of which, charas (pukhta) weighing five (05) Kgs. Consisting of five (05) packets in a black shopping bag was recovered from his residential room. Out of total quantity, five (05) grams charas was taken from each packet and sent to F.S.L. For chemical analysis, while the remaining charas was sealed in a separate parcel. The accused- petitioner had already absconded from the spot before the arrival of police as he was needed in another case-F.LR. No. 147 dated 11-12-2006 under section 9 of the Control- of Narcotic Substances Act, 1997. Accordingly, a murasila was sent to police station, where a case under section 9 of the ibid Act was registered against the accused-petitioner as mentioned above.
9. No doubt the contraband charas was allegedly recovered from the residential room of house of the accused- petitioner, but the perusal of the record shows that the said house was not in exclusive use of the petitioner. Further, despite having prior knowledge about the selling of charas, none from the locality was' associated with the recovery of alleged contraband charas, therefore, the provisions of section 103, Cr.P.C. Had not been complied with.
10. ' It is on record that under section 22 of the Prohibition (Enforcement of Hadd) Order, 1979, the search warrant had been issued by Mr. Tila Muhammad Khan, Judicial Magistrate-Ill, Peshawar whereby the S.H.O. Police Station, Tehkal was authorized to enter the house and arrest the accused-petitioner dealing in the business of contraband charas, but the S.H.O. Of said police station did not follow question could only be issued by the learned Judge, Special Court ANF and not by the Judicial Magistrate as was done in the case in hand.
11. ' The occurrence in the case in hand had taken place on 6-2-2007 whereas the samples were received in the FSL on '3-4-2007 after the delay of one (01) tnonth and twenty seven (27) days and there is no explanation as to where the samples were lying for such a long period.
12. ' Resultantly, I accept the application in hand and direct that the accused- petitioner be released on bail on furnishing bail bond in the sum of rupees five (05) lacs (Rs.5,00,000 only) with two sureties each in the like amount to the satisfaction of the learned trial Judge, who shall ensure that the sureties are local, reliable and men of means.