SUHINO KHAN vs THE STATE
This is a post-arrest bail application filed in the Sindh High Court arising from Crime No. 78 of 2008 registered at Police Station Khanwahan, District Naushahro Feroze, under Section 9(c) of the Control of Narcotic Substances Act, 1997. The core legal question involved whether post-arrest bail should be granted when 3000 grams of Charas in six pieces were recovered, but a sample was not conclusively drawn and sent from each individual piece to the Chemical Examiner, and where the total weight minus the disputed sampling potentially falls outside the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898. The court held that the prosecution must be careful when narcotics are recovered in multiple pieces and should send a sample from each piece to the Chemical Examiner. Finding that the case made out grounds for further inquiry and noting the applicant's medical condition, the court granted post-arrest bail to the applicant subject to furnishing the requisite surety.
- Whether post-arrest bail should be granted under the Control of Narcotic Substances Act, 1997 when samples are not drawn from each recovered piece of contraband?
- Does the failure to send a sample from each recovered packet of narcotics to the Chemical Examiner affect the prosecution's case at the bail stage?
- Is an accused entitled to bail when the recovered quantity, upon proper verification of sampling, falls outside the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' AMER RAZA NAQVI, J.--- This is bail application in crime No,78 of 2008 Police Station Khanwahan, District Naushahro Feroze under section 9(c) of CNS Act, 1997.
2. ' According to allegation, 3000 grams in 6 pieces were recovered from the applicant, out of which 100 grams were sent to Chemical Examiner and the report was found in positive.
3. ' Learned counsel for the applicant submits that prosecution was duty bound to take sample from each piece of Charas A whereas only one sealed packet was sent to Chemical Examiner and it is not mentioned that the sample was taken out from each packet. He relied upon PLD 2008 Kar. 14, 2007 M LD 1092 and 2009 PCr.LJ 102. The learned counsel submits that there is consistent view of superior Courts that in case sample was not taken from each packet and the quantity of substance 'recovered does not attract prohibitory clause of section 497, Cr.P.C., the bail should usually be granted to the applicant. He further submits that in daily Kawish the arrest of accused was reported which was published on 26-9-2008 whereas the police arrested the accused on 26- 9-2008 at 1300 hours which shows that the police arrested the accused after the publication. He further submits that the accused is suffering from Cronic renal failure and the ailment has increased due to which he has been referred from G.M.C. Hospital to C.M.C. Hospital for treatment of his kidney problem where he is currently admitted as such the applicant is also entitled to concession of bail on medical ground.
4. ' On the other hand Mr. Ali Hyder Dareshani has relied upon 2003 SCM R 573 in such case 600 grams heroin was recovered out of which one gram was sent to Chemical Examiner and the bail was declined.
5. ' I have heard both the learned counsel and perused the record with, their able assistance.
6. ' The case relied upon by Mr. Ali Hyder pertains to recovery of heroin and it was only one packet and sample was sent from one packet, therefore this case is not applicable in the present matter: The learned trial Court has mentioned that 100 grams Charas was taken from each packet and sealed separately for Chemical Examiner whereas Mr. Ali Hyder Dareshani has conceded that this is not the correct position. As observed in case of Nadeem v. The State reported in 2007 M LD 1092 prosecution should be very careful while maintaining the record when narcotics are recovered in many pieces and sample from each piece should be sent to Chemical Examiner, when slight change in the quantum of substances can affect very seriously the liberty of accused, prosecution should be very careful in sending the substance to Chemical Examiner.
7. ' In view of above facts and circumstances. I am of the view that the accused has made out a case for concession of bail which is accordingly granted to him in the sum of Rs,200,000 (Rupees Two Lac) and P.R. Bond in the like amount to the satisfaction of trial Court.