MUHAMMAD WALI vs THE STATE
This matter comes before the Peshawar High Court through a post-arrest bail petition filed by the petitioner, Muhammad Wali, seeking release in case F.I.R. No. 705 dated 23-10-2009 registered under section 9 (c) of the Control of Narcotic Substances Act 1997 at Police Station Gul Bahar, Peshawar, involving the alleged recovery of charas and heroin. The core legal questions involve whether the delayed dispatch of samples, non-association of private witnesses, and alleged procedural defects entitle the accused to further inquiry and bail, and whether the recovery of narcotics places the case within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. The court held that the recovery of 80 grams of heroin in sachets along with small denomination currency notes prima facie establishes the petitioner's involvement in the drug trade, disentitling him to bail despite arguments regarding quantum of punishment for other recovered substances. The petition was dismissed with directions to the prosecution and trial court to expedite the submission of the final report and conclusion of the trial.
- Does the recovery of heroin in small sachets along with currency notes constitute prima facie evidence of involvement in the sale of narcotics disentitling an accused to bail?
- Whether delayed submission of samples to the Forensic Science Laboratory and absence of private witnesses make a narcotics case one of further inquiry under section 497 of the Code of Criminal Procedure 1898?
- Does the quantum of recovery under the Control of Narcotic Substances Act 1997 affect the applicability of 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
' MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner herein seeks his release on bail in case F.I.R.
No,705 dated 23-10-2009 registered under section 9 (c) CNSA, Police Station Gul Bahar, Peshawar.
2. The contentions of the learned counsel for the petitioner were that the samples of alleged recovery were sent to Forensic Science Laboratory with a delay of many days, no private person was associated to witness the alleged recovery which makes the case of the accused petitioner as that of further inquiry. He further submitted that the very investigation conducted in the case is against the provisions of Police Order. Since registration of the case, the prosecution has failed to submit its final report under the law before the trial Court which also entitles the accused petitioner to the grant of bail.
3. As on the other hand, the learned A.A.-G. While refuting the arguments of the learned counsel for the petitioner submitted that recovery was made from the immediate possession of the petitioner which was confirmed to be the narcotic substance by the report of Forensic Science Laboratory. He further submitted that prima facie case against the accused petitioner is proved regarding business of selling of contraband as the recovery of heroin was in the shape of sachets (puries) and cash recovery of currency notes in small denominations, that the Challan in the case is complete and would be submitted in the Court very soon.
After hearing the learned counsel for the parties and perusal of the record, it transpired that the contraband recovered from the accused petitioner falls under section 9(c) of CNSA 1997. There is positive report of Forensic Science Laboratory which confirms that the recovered substances were chars and heroin. As far as the recovery of 2 Kg of charas is concerned, there is a considered view of this Court that while dealing with the bail applications of the accused in such matters, the quantum of recovery should be kept in mind that it must commensurate with the quantum of punishment to be awarded after conclusion of the trial which makes the case of the accused beyond the scope of prohibition contained in section 497, Cr.P.C. But the recovery of 80 grams of heroin in the shape of sachets along with currency notes of small denominations apparently suggests the prima facie involvement of the accused petitioner in the practice of sale of narcotic substance and that too of heroin which has crippled a fair chunk of our youth and persons involved in such a menace don't deserve any concessional treatment like bail. The accused petitioner, however, would have a fair chance of his defence to prove this innocence before the trial Court.
4. Hence, the plea of bail of the accused in the light of reasons given above cannot be considered and this bail petition is accordingly dismissed. However, the prosecution is directed to submit the final report against the accused within a fortnight positively and the learned trial Court is also directed to conclude the trial within a period of one month after submission of challan with a hope that the above observations would not be a prejudicial factor against the accused.