MAHMOOD NAWAZ alias MITHOO vs THE STATE
This is a post-arrest bail application filed by the accused against the order of the Special Judge (C.N.S.) Larkana, declining bail in a case involving the alleged recovery of 1200 grams of Charas under section 9(c) of the Control of Narcotic Substances Act, 1997. The core legal question revolves around whether the failure to send samples from each individual piece of recovered contraband for chemical analysis brings the case within the prohibitory clause of section 497 Cr.P.C. The Sindh High Court held that since only 200 grams out of the total 1200 grams were sent for chemical analysis without clarifying whether samples were drawn from each piece, the case tentatively falls under section 9(b) of the Control of Narcotic Substances Act, 1997, attracting a lesser punishment, thereby making the matter one of further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure 1898. The key principle laid down is that where representative samples are not clearly drawn from each individual piece of recovered narcotic substance for chemical analysis, the case warrants the grant of further inquiry bail.
- Does the failure to send samples from each individual piece of recovered narcotic substance for chemical analysis make a case one of further inquiry under section 497(2), Cr.P.C.?
- Whether recovery of 1200 grams of Charas where only 200 grams are sent for chemical analysis reduces the offense to section 9(b) of the Control of Narcotic Substances Act, 1997 for bail purposes?
- Can post-arrest bail be granted on the ground that the chemical examiner's report would only verify the specific sample sent rather than the entire bulk?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. ' SYED SHAFQAT ALI SHAH MASOOMI, J.---This bail application is directed against the order, dated 25-4-2009, passed by the learned Special Judge (C.N.S.) Larkana, in Criminal Bail Application No,292 of 2009, for allegedly having committed offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, being crime No,45 of 2009, registered with Police Station Darri, Larkana.
2. ' Brief facts of the prosecution case in nutshell are that on 19-3-2009, SIP Mushtaq Ahmed Jatoi, S.H.O. Police Station Darri, Larkana, lodged report on behalf of the State, alleging therein that 1200 grams of Charas has been recovered from accused Mohammad Nawaz alias Mithoo, who was arrested in Crime No,44 of 2009; and out of 1200 grams Charas 200 grams were sealed separately for chemical analysis.
3. ' Earlier, bail plea of the applicant has been declined by learned trial Court i.e, learned Special Judge (C.N.S.), Larkana, hence this bail application.
4. ' Learned counsel for the applicant has mainly contended that the alleged Charas was in shape of pieces but the sample for analysis has not been taken out from each of the piece, therefore, no expert opinion will be available with prosecution regarding remaining quantity of Charas. He next contended that only 200 grams of Charas out of the alleged 1200 grams were separated and sent for analysis and the report if comes in positive will only be in respect of 200 grams. He lastly submitted that applicant has been granted bail in connected case vide Crime No,22 of 2009, by trial Court.
5. ' Learned State Counsel has conceded to the grant of bail to applicant/accused.
6. I have carefully considered the arguments advanced by the learned counsel for the parties and properly assessed the material placed on record. It appears that 1200 grams of Charas was allegedly recovered from the applicant/accused in the shape of pieces while only 200 grams were taken out of the entire recovered material for the purpose of Chemical Analysis but it is not mentioned that as to whether the sample was taken from each piece or only from one of the same therefore, no A conclusive finding could be recorded that all the pieces were of contraband narcotics, hence the proper and final finding is yet to be recorded at the trial. Besides all this, the applicant/accused already been granted bail in main case in Crime No,22 of 2009 on Police Station Darri, Larkana, by the learned trial Court, vide order, dated 24-4-2009.
7. ' In the case of Muhammad Nawaz v. The State (2007 M LD 1846), the accused was found in possession of 10 kgs Charas in the shape of lkg packets packed in the plastic bags each containing one kg Charas out of which only one Kg was sent to the Chemical Analyzer while no samples out of remaining 9 kgs Charas were sent.
8. Since, in the case in hand, out of the entire contraband allegedly recovered from the applicant/accused only 200 grams were sealed separately for sending it to Chemical Analyzer therefore, at the most case against the applicant fall under section 9(b) of C.N.S. And it carries punishment for 2 years, ' In the existing circumstances the case of applicant/accused falls within purview of subsection (2) of section 497, Cr.P.C. And therefore, he was granted bail vide short order, dated 11-5-2009, in the sum of Rs,100,000 (One lac) on his furnishing solvent surety and P.R. Bond in the like amount to the satisfaction of trial Court, and these are the reasons for the same.
9. ' The observations made hereinabove are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of trial Court which is free to appraise the evidence strictly according to merits of the case.