MUBARAK DIN vs THE STATE
This is a criminal petition seeking post-arrest bail in a narcotics case where the petitioner was charged under Section 9 of the Control of Narcotic Substances Act, following the alleged recovery of 3 Kgs of Charas. The core legal question involves the tentative assessment of evidence at the bail stage, particularly concerning discrepancies in the prosecution's case such as the failure to prepare a site-plan, absence of recovery of sale proceeds or scales, and a major discrepancy between the quantity allegedly sent to the Forensic Science Laboratory and the quantity actually received. The court held that these investigative defects diluted the gravity of the offence, bringing the case within the scope of further inquiry. Consequently, the court accepted the bail application, laying down the principle that significant discrepancies in sample weights and flawed investigative processes can constitute reasonable grounds for granting post-arrest bail in narcotics cases.
- Does the exclusion of Section 103 Cr.P.C. by the Control of Narcotic Substances Act apply to the non-association of private witnesses?
- Can discrepancies between the quantity of narcotics alleged to be recovered and the quantity received by the Forensic Science Laboratory form a ground for bail?
- Whether defective investigation like the failure to prepare a site-plan and non-recovery of sale proceeds dilutes the gravity of the offence at the bail stage?
- Section 9, Control of Narcotic Substances Act 1997
- Section 103, Code of Criminal Procedure 1898
' MUHAMMAD RAZA KHAN, C.J.--- The petitioner has been charged for an offence under section 9 C.N.S.A. Vide F.I.R No,436 dated 16-6-2008 of Police Station Pishtakhara Peshawar. He has been intercepted by the police on prior information and 3 Kgs Charas was recovered from shopping bag held by him. He seeks his release on bail which has been declined by the learned Additional Sessions Judge on 27-6-2008.
2. I have listened to the learned counsel for the petitioner and the State and examined the record.
3. The argument with regard to the non-association of the private witnesses despite prior information has no force because section 103, Cr.P.C. Has been excluded by the C.N.S.A. The same principle would not be applicable even for the involvement of the informer because the people may furnish spy information, but may not dare to be cited as witnesses against drug traffickers.
Similarly the arguments with regard to the initial action of raid, recovery and arrest by an A.S.-1.
Does not hold much weight although it was desirable that the legally authorized officer should have conducted the raid on proper information. However, some of the arguments are relevant and forceful like the lack of logic in the presence of the petitioner in front of the alleged shop along with the contraband for the sale of narcotics to the potential clients, non-mentioning of the shop in the site-plan rather the failure of the Investigating Officer to prepare the site-plan and the failure to recover the sale proceeds and the scale and weight for the purpose of retail sale of Charas are some of the major defects in the investigation process. Above all the F.I.R. Contains an allegation that three slabs of Charas were recovered and sample of 5 grams for chemical analysis was obtained from each of the slab and a total of 15 grams comprising of 3 samples were forwarded to the F.S.L., whereas the F.S.L. Has received only 5 grams of narcotics comprising of 3 samples which, at the most, means that only 1 Kg. Charas has been recovered from the possession of the petitioner. Thus the gravity of the offence is diluted at least to the extent of tentative assessment at bail stage.
4. Keeping in view the punishment likely to be imposed on the petitioner at the conclusion of trial, this can be considered appropriate case for release of the petitioner on bail. The application is, therefore, accepted and the petitioner is admitted to bail in the sum of Rs,2,00,000 (two lacs) with two sureties each in the like amount to the satisfaction of the trial Court.
Cited by 1 case
- AYUB MASIH vs The STATE 2019 MLD 30