SAID MUHAMMAD vs STATE
This matter concerns a post-arrest bail application filed by the petitioner, Said Muhammad, who was charged with the possession of 2500 grams of charas under Section 9 of the Control of Narcotic Substances Act, 1997. The petitioner sought bail on grounds of lack of independent witnesses during the recovery, alleged mala fide implication, and the completion of the investigation. The State opposed the bail, citing the recovery of a significant quantity of contraband from the petitioner's conscious possession. The Court held that the absence of independent witnesses, the delay in sending samples to the laboratory, and the requirement to account for the safe custody of the substance during that delay raised significant questions for trial. Furthermore, the Court noted that the potential sentence, while serious, did not preclude bail given the petitioner's period of incarceration. Consequently, the Court granted bail, emphasizing that the prosecution must prove the integrity of the evidence chain and the safe custody of the contraband during the unexplained delay in chemical analysis.
- Does the failure to associate independent witnesses during a narcotics recovery entitle an accused to bail?
- Is an unexplained delay in sending samples to the chemical laboratory a ground for granting bail in narcotics cases?
- Must the prosecution prove the safe custody of narcotics during the period between recovery and chemical analysis?
- Section 9, Control of Narcotic Substances Act 1997
- Section 497, Code of Criminal Procedure 1898
- Rule 4(2), Control of Narcotic Substances (Government Analysts) Rules 2001
Having failed to get the concession of bail in case FIR No, 73 dated 27.3.2008 under Section 9 CNSA of Police Station Paroa, District D.I. Khan, from the Court of learned Additional Sessions Judge D.I.Khan vide order dated 23.4.2008, Said Muhammad petitioner has moved this Court through the instant application of the same relief.
2. On 27.3.2008 at 1800 hours, Syed Iqbal Hussain SHO of Police Station Paroa alongwith, police party was present on Ramak Check post when Bus No, C-1533/Peshawar reached there which was stopped and checked through Muhammad Aslam LH-947 and a person sitting on Seat Nos, 37/38 in suspicious condition having a plastic bag in his lap was deboarded therefrom. On checking, three packets of charas weighing 2500 grams was recovered from inner side of the bag, who disclosed his name as Said Muhammad son of Ali Baz, caste Awan, resident of Qamar Dhand, Tehsil Lachi, District Kohat. He was thus booked for the offence vide case FIR mentioned above.
3. Learned counsel for the petitioner vehemently contended that there is no independent witness to the alleged recovery; that despite the availability of numerous passengers including driver and conductor of the Bus, no one from them was associated with the recovery process, that the accused/petitioner has been roped in the case with mala fide intention, that he has not confessed to the offence and that investigation in the case is complete and the petitioner is no more require for the purposes of investigation.
4. Mr. Farooq Akhtar, the learned counsel for State, however, resisted the application by contending that a huge quantity of contraband i,e, charas has been recovered from the direct and conscious possession of the accused/petitioner and there is nothing so far available on record to prove that the police officials had any ill-will or animosity with the accused to falsely implicate him in the offence.
5. After considering the arguments advanced at the bar and going through the record, it is yet to be established on record through evidence that in presence of independent private witnesses including driver and conductor of the vehicle, whether the complainant/SHO was not required to have associated anyone of them to the alleged recovery of contraband charas. As the quantum of sentence has to be proportionate to the quantum of the substance recovered, I am afraid that the accused/petitioner can be awarded the maximum sentence attracting the prohibitory clause of Section 497 Cr.P.C. coupled with the fact that he is in jail for more than two months which would further tilt the scale of justice in favour of bail rather than jail, in view of the dictum handed in an unreported judgment of this Court in the case of Amir Nawaz vs. The State (Cr. Misc. No, 50 of 2007 decided on 9.2.2007).
6. Further more, the alleged samples were sent to the laboratory on 22.4.2008 as shown in Chemical Examiner's report. The-prosecution had to prove and account for the delay commencing from 27.3.2008 to 22.4.2008 as laid down in Rule 4(2) of the Control of Narcotic Substances (Government Analysts Rules, 2001), and to prove during the trial that in-between the intervening period, the safe custody of the substance was guaranteed as held in the case of Iftikhar alias German etc. vs. The State, reported in 2005 P.Cr.L.J. 1245.
7. Consequently, I accept this application and admit the accused/petitioner to bail provided he furnishes bail bond in the sum of Rs, 3,00,000/- (Rupees three lacs) with two sureties each in the like amount to the satisfaction of Ilaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.
Above are the reasons for my short order of even date.