AACHAR vs THE STATE

ORDER

1. 'AAMIR RAZA NAQVI, J.---The applicant has applied bail in respect of Crime No,6 of 2009 registered under section 9(c) of C.N.S. Act at Police Station Dio (Excise) Mirpurkhas.

2. 'According to allegation, the present applicant was found in possession of 1250 grams of Charas which was recovered from him in presence of mashir Saiful Hussain. According to allegation contained in F.I.R. During a search at about 1830 hours, a Mini Coaster came from Sanghar side from which the present applicant got down. He was searched and two pieces and two rods of Charas were recovered from him. Out of this recovered Charas 10 grams were sent to Chemical Examiner.

3. 'Learned counsel for applicant states that present applicant is hari/tenant of one Wadera Faisal Wassan and according to learned counsel said Wadera wanted to eject the present applicant from the land and for such purpose he has used the service of his friend, complainant in this matter and registered this false case against the applicant. Learned counsel further submits that requirement of section 103, Cr.P.C. Has not been fulfilled and this is a border line case and marginally high quantity from 1000 grams has been recovered in order to make out a case under section 9(c) of C.N.S. Act and in such situation in invariably bail has been granted to the applicants by Superior Courts. He has relied upon in this respect a case reported as 2008 M LD 608, he has also relied upon 2004 YLR 439. On point of delay in sending the sample, learned counsel has relied upon 2008 PCr.LJ 361. Learned counsel has also referred Control of Narcotic Substances (Government Analysts) Rules, 2001. In said rules, it has been provided in Sub-Rule (2) of Rule 4 that sample is to be sent at the earliest but not later than 72 hours of the seizure whereas in the present case there is a delay of four days in sending the substance recovered to the Chemical Examiner.

4. 'On the other hand, learned State Counsel has vehemently opposed this bail application and also pointed out that English translation in the matter has not correctly been made and in the translation of F.I.R, seizure memo. And statement of one P.W, the words "Thoro Thoro" has not been translated in the English version perhaps to take advantage of case-law in which bails were granted in the cases where samples have not been taken from each piece recovered.

5. 'I am rather disappointed to see that learned State Counsel is right and translation has not been made correctly. Courts do expect that learned counsel while submitting some documents will submit it correctly, particularly translations and I expect that in future counsel will be more careful in filing the translation and will satisfy that this translation is being filed correctly.

6. 'The learned State Counsel has also argued that although in Narcotic cases requirement of private mashirs is not necessary yet in the present case one P.W. Saiful Hussain has been made mashir. On this point, however, learned counsel for applicant submitted that this Saiful Hussain is a police tout and is a witness in none cases but learned counsel did not provide any list of such cases. Learned State Counsel has also submitted that this is an offence against society and no leniency should be shown in these cases.

7. 'I have heard both the learned counsel and perused the record with their able assistance and also went through the case-law cited at bar.

8. Although it is mentioned in the documentation made at the time of recovery that samples were taken from each piece but it is not mentioned that what is the quantity taken from each piece recovered and out of 1250 grams only 10 grams were sent for Chemical Examination. It has been held in SBLR 2008 Sindh 527 that taking of a sample of minor quantity out of a lot would cause doubt as to whether total commodity recovered from the possession was heroin or not. In such situation applicant was found entitled to the grant of bail. In the present case apparently Control of Narcotic Substances (Government Analysts) Rules 2001 have been violated which also creates doubt about the genuineness of recovery. In view of the facts and circumstances of the case that substance recovered has not properly been mentioned separately so far as the quantity separated is concerned, the exact quantity has become doubtful. In such situations and in case where quantity was found marginally high than 1000 grams, bail is invariably granted to the applicants by Superior Courts.

9. 'In such situation, I am of the humble view that applicant has made out a case for grant of concession of bail which is granted to him in the sum of Rs,50,000 and A P.R. Bond in the like amount to the satisfaction of learned trial Court.