MUHAMMAD NAEEM vs THE STATE
This bail petition concerned an accused charged under Section 9(c) of the Control of Narcotic Substances Act, read with Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, after narcotics were recovered from a vehicle he was driving. The petitioner sought bail arguing lack of direct evidence and that co-accused were granted bail. The State contended the driver was in conscious possession and the crime attracted a prohibitory clause. The court held that whether the petitioner could be saddled with conscious possession of the recovered substance, given he did not attempt to flee while a co-accused did, was a matter requiring further inquiry. The significant delay in the commencement of the trial, coupled with the doubtful attraction of the prohibitory clause where the maximum sentence for the recovered quantity of charas (5 kg) might not be awarded, also favored granting bail. Consequently, the petition was allowed, and bail was granted.
- Can a driver be automatically presumed to be in conscious possession of narcotics recovered from a vehicle if they do not attempt to flee?
- Does a significant delay in the commencement of a trial favor the grant of bail?
- Is the attraction of a prohibitory clause doubtful in a narcotics case if the quantum of recovered substance suggests the maximum sentence might not be awarded?
- What factors are considered when assessing conscious possession of contraband recovered from a vehicle?
- Section 9(c), Control of Narcotic Substances Act
- Article 3, Prohibition (Enforcement of Hadd) Order 1979
- Article 4, Prohibition (Enforcement of Hadd) Order 1979
' EJAZ AFZAL KHAN, J.---The petitioner who is charged in a case registered against him and two others under section 9(c) CNSA r/w Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 vide F.I.R. No,555, dated 27-5-2009 in Police Station Cantt: Abbottabad, seeks his release on bail on the ground that in the absence of any direct evidence on the record, the incriminating substance recovered from the vehicle, he was driving at the time of occurrence, cannot be fastened on him and that his co-accused who are similarly placed and positioned have since been released on bail.
2. As against that Mr. Munir Ahmed Bhatti Advocate appearing on behalf of State argues that the driver being custodian of the vehicle cannot be heard saying that he was not in conscious possession of the incriminating substance recovered from the vehicle and that he being prima facie connected with a crime attracting prohibitory clause does not deserve concession of bail that too when the menace of narcotics is likely to envelop the entire society in its fold like a wild fire, if not checked with sternness.
3. I have gone through the record and considered the submissions made at the Bar.
4. When petitioner after seeing the police made no effort to decamp from the scene of occurrence and one of the co-accused not only tried but succeeded in making his escape good from the spot; the question whether petitioner can be saddled with conscious possession of the incriminating substance recovered from the vehicle in cartons is one calling for further enquiry. The fact that petitioner has been in jail for almost four months and yet commencement of his trial let alone its conclusion is not in sight would also add in favour of bail rather than jail. Even attraction of prohibitory clause would be doubtful in this case when the petitioner is likely to be awarded the maximum sentence provided by the statute for possession 5 k.g. Of charas as it is too settled that the quantum of sentence always invariably follows the quantum of substance recovered.
5. For the reasons discussed above, this petition is allowed and it is directed that the petitioner be released on bail if he furnishes bail bonds in the sum of Rs,1,00,000 (Rupees One lac) with two sureties each in the like amount to the satisfaction of learned trial Court, who shall ensure that the sureties are local, reliable and men of means.