MUHAMMAD SAJID vs THE STATE
This matter arises from a petition for post-arrest bail filed by Muhammad Sajid, who was implicated in a criminal case registered under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and section 9(c) of the Control of Narcotic Substances Act, 1997, following the alleged recovery of indigenous liquor and 60 kilograms of 'Bhang' from a cattle-shed. The core legal question concerns whether the recovery of the alleged substances warrants continued detention and the applicability of the prohibitory clause under section 497 of the Code of Criminal Procedure, 1898, particularly regarding whether 'Bhang' falls within the definition of hemp under the Control of Narcotic Substances Act, 1997. The court held that the petitioner is entitled to post-arrest bail, noting that 'Bhang' is excluded from the definition of hemp based on precedent and that the charged offence does not fall within the prohibitory clause of section 497, Code of Criminal Procedure, 1898, thus bringing the case within the scope of further inquiry. The key principle laid down is that where an alleged recovered substance does not satisfy the statutory definition of a prohibited narcotic, and the offense falls outside the prohibitory clause, the accused has made out a case for further inquiry justifying the grant of bail.
- Whether 'Bhang' is included in the definition of hemp under the Control of Narcotic Substances Act, 1997?
- Does an offense involving substances excluded from the prohibitory clause warrant the grant of post-arrest bail under section 497 of the Code of Criminal Procedure, 1898?
- Articles 3 and 4, Prohibition (Enforcement of Hadd) Order, 1979
- Section 9(c), Control of Narcotic Substances Act, 1997
- Section 2(d)(ii), Control of Narcotic Substances Act, 1997
- Section 497, Code of Criminal Procedure 1898
ORDER
' This order is intended to dispose of petition for post-arrest bail moved by Muhammad Sajid, petitioner who stands involved in case F.I:R. No.75, dated 27-3-2008 registered at Police Station Abbas Nagar, Bhawalpur under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 read with section 9(c) of the Control of Narcotic Substances Act, 1997 with the allegation that on the tip of an informer a police party headed by Muhammad Azam, A.S.-I./complainant of the case apprehended the petitioner from a "Katcha Khola" (abandoned mud room) of his cattle-shed (Bhana Muwaishian) while running a `Bhutti' (an indigenous distillery) for distillation of `Dese(indigenous)liquor. Apparatus and utensils used for the purpose and 10 Litres of indigenous liquor (in plastic container) were also taken into possession. The police party also got recovered 60 Kilograms of 'Mang' from two plastic bags from there.
2. This petition has been opposed by the learned Additional Prosecutor General. Both the parties heard and record perused.
3. Firstly, the petitioner was booked under Articles 3 and 4 of the Prohibition (Enforcement of Hadd)
Order, 1979. However, while parting with the bail rejection order, learned Additional Sessions 'Judge, Bahawalpur made an observation that section 9-C of the Control of Narcotic Substances Act, 1997 was applicable and so it was added accordingly by the local police. It is contended that there is nothing on record to support the application of the said provision of law. Apart from this aspect of the case, Bhang' is not included in the definition of hemp in terms of sub-clause (ii) of Clause (d) of section 2 of the Act ibid as reported in Najabat Ali Shah v. The State (2008 PCr.LJ 750), Muhammad Aslam and another v. The State (2006 PCr.LJ 1595) and Abdul Jalil v. The State (2000 PCr.LJ 760).
Therefore, not only the case of the petitioner falls within the purview of further inquiry but also the offence with which he has been charged does not fall within the prohibitory clause under section 497, Cr.P.C. He is behind the bar since 27-3-2008 and no useful purpose would be served to keep him in the jail for an indefinite period.
4. We, therefore, accept this petition and enlarge the petitioner on bail subject to furnishing bail bond in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the trial Court.