TAHIR vs THE STATE
The petitioner sought post-arrest bail in a case involving the alleged recovery of a large quantity of liquor from his car, registered under the Prohibition (Enforcement of Hadd) Order, 1979. The core legal question was whether the accused was entitled to bail when the prosecution had failed to produce a chemical analysis report confirming the recovered substance was indeed alcohol. The Court held that in the absence of a chemical analysis report, the nature of the recovered substance remained unconfirmed, thereby rendering the case one of further inquiry. The Court emphasized that refusing bail in such circumstances would amount to punishment before trial, which is contrary to judicial principles. Consequently, the Court allowed the bail petition, ruling that the lack of confirmation regarding the nature of the recovered items entitled the accused to the concession of bail, subject to the provision of bail bonds. The decision established that the absence of forensic confirmation of contraband at the pre-trial stage constitutes grounds for further inquiry, justifying the grant of bail.
- Does the absence of a chemical analysis report confirming the nature of recovered contraband constitute a case of further inquiry for the purpose of bail?
- Is an accused entitled to bail if the prosecution fails to confirm the nature of the recovered substance at the pre-trial stage?
- Does the refusal of bail in the absence of forensic confirmation of the alleged contraband amount to punishment before trial?
- Article 3, Prohibition (Enforcement of Hadd) Order 1979
- Article 4, Prohibition (Enforcement of Hadd) Order 1979
- Section 497, Code of Criminal Procedure 1898
'MAZHAR ALAM KHAN MIANKHEL, J.---The present petitioner seeks his release on bail in case F.I.R.
No,787 dated 25-9-2009 under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 registered at Police Station Hayatabad on the ground that huge quantity of liquor (local made alcohol) was recovered from his car and the petitioner was apprehended at the spot by the police.
'After refusal of concession of bail, the accused petitioner has moved the instant application.
2. Learned counsel appearing on behalf of the petitioner submitted that nothing incriminating was recovered from the immediate possession of the petitioner and from the date of alleged recovery, no F.S.L. Report confirming the alleged recovery to be liquor has yet been made available by the prosecution. He was further of the view that there was no independent witness to the alleged recovery which makes the case of the accused petitioner as that of further inquiry and the punishment provided for the offence does not fail within the prohibitory clause of section 497, Cr.P.C. Thus, the accused petitioner is entitled to the concession of bail.
3. The learned Additional Advocate General, Mr. Fazalur Rehman Khan, submitted that the offence for which the accused has been charged is a heinous offence badly affecting the society at large.
The recovery was made from the car of the accused which amounts to recovery from his immediate possession. So, in the circumstances, the accused petitioner is not entitled to any leniency.
4. Perusal of the record reveals that no doubt, a huge quantity of liquor has allegedly been recovered from the accused petitioner but till date, the prosecution has failed to confirm it with its chemical analysis that the alleged recovery was in fact alcohol, possession and use of which is prohibited under the law and at this stage, one cannot presume the alleged recovery to be liquor which makes the case of the accused petitioner as that of further inquiry entitling him to the concession of bail. In the circumstances of the case, the refusal of grant of bail would amount to punishment before the trial which is against the principles laid down by the judicial system of the country.
5. Hence, for the reasons recorded above, this bail petition is allowed and the petitioner shall be released on bail if he furnishes bail bond in the sum of Rs,100,000 (Rupees one lac) with two sureties, each in the like amount, to the satisfaction of Illaqa Judicial Magistrate/ Magistrate on Duty.
'However, being tentative assessm ent as per record available today before this Court, this order may not prejudice the mind of the trial Court.
Cited by 1 case
- JAHANGIR REHMAT Versus State 2019 YLRN 55