NAJABAT ALI SHAH vs THE STATE
This matter concerns a petition for post-arrest bail filed by the petitioner, Nijabat Ali Shah, who was charged under Section 9-C of the Control of Narcotic Substances Act, 1997, following the alleged recovery of three maunds of 'Bhang' and a repeater. The core legal question before the Court was whether the recovered substance, identified as 'Bhang', falls within the definition of 'hemp' as provided under Section 2(d)(ii) of the Control of Narcotic Substances Act, 1997, thereby justifying the petitioner's continued detention. The petitioner contended that 'Bhang' is excluded from the statutory definition of hemp, rendering the prosecution's case questionable. Upon reviewing the Chemical Examiner's report, which confirmed the recovered material was indeed 'Bhang', the Court held that the legal status of 'Bhang' vis-à-vis the definition of hemp constitutes a matter of further inquiry. Consequently, the Court granted the bail petition, determining that the petitioner's continued incarceration would serve no beneficial purpose. The principle laid down is that where the classification of a recovered narcotic substance under the relevant statute is debatable, the case warrants further inquiry, entitling the accused to the concession of bail.
- Does the recovery of 'Bhang' constitute an offence under the Control of Narcotic Substances Act 1997?
- Is the classification of 'Bhang' as 'hemp' under the Control of Narcotic Substances Act 1997 a matter of further inquiry for the purpose of bail?
- Can an accused be granted post-arrest bail when the legal definition of the recovered substance is contested?
- Section 9-C, Control of Narcotic Substances Act 1997
- Section 2(d)(ii), Control of Narcotic Substances Act 1997
ORDER
' Nijabat Ali Shah, the petitioner, seeks post-arrest bail, in case F.I.R. No,197, dated 15-5-2007, offence under section 9-C of Control of Narcotic Substances Act, 1997, registered with Police Station City Khanewal.
2. As per prosecution version, Gulzar Hussain, A.S.-I. Along with Sher Ali 716-HC, Khan Muhammad 473-C, Abdur Rehman 426-C and Umar tiaraz were present at Jahanian Road near Niazi Chowk, when on information and pointation of an informant, a raid was conducted and on search of the petitioner, two sacks of "Bhang" weighing three maunds were recovered. Besides this, a repeater was also recovered and separate proceedings were taken. The petitioner was arrested. One kilogram "Shang" from each sack was separated and two parcels were prepared, and sent to the office of Chemical Examiner, hence, this case.
3. Learned counsel for the petitioner states that; the petitioner is innocent and has been falsely implicated in this case by the complainant with mala fide intention. As per F.I.R. "Bhang" has been recovered from the petitioner and this has not been included within the hemp as defined in section 2(d)(ii) of the Control of Narcotic Substances Act, 1997, thus, petitioner is entitled to the concession of bail. Reliance has been placed on Muhammad Aslam and another v. The State 2006 PCr.LJ 1595 and Abdul Jalil v. The State 2000 PCr.LJ 760 (Karachi).
4. Conversely, learned Deputy Prosecutor-General for the State has opposed the bail petition.
5. We have heard learned counsel for the parties and perused the record. The alleged material recovered from the petitioner was sent to the Chemical Examiner and according to the report, dated 8-6-2007, the entire recovered material is "Bhang". The contention of learned counsel for the petitioner that "Bhang" is not hemp as defined in section 2(d)(ii) of the Control of Narcotic Substances Act, 1997, makes the case of the petitioner one of further inquiry. The petitioner is behind the bars since his arrest and his further detention in the lock-up would not serve any beneficial purpose.
5. For what has been discussed above, this bail petition is accepted and the petitioner is admitted to post-arrest bail subject to furnishing bail bonds in the sum of Rs,50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the trial Court.
Cited by 2 cases
- MUHAMMAD JAVED Versus State 2017 PCrLJN 204
- MUHAMMAD SAJID vs THE STATE 2008 MLD 1266