FEROZ vs STATE
The applicant sought post-arrest bail in a case registered under Section 23, punishable under Section 27 read with Section 30 of the Drugs Act, 1976, relating to the recovery of spurious drugs. The core legal question was whether the applicant was entitled to post-arrest bail given the nature of the offence and his previous conviction. The Sindh High Court held that the applicant was not entitled to bail, noting that the offence carries a penalty of up to ten years imprisonment, falling within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898, and that the applicant was a habitual offender previously convicted of a similar offence under the Drugs Act, 1976. The court laid down the principle that habitual offenders involved in the trade of spurious drugs who play with the lives of innocent people are not to be extended judicial leniency or the concession of bail.
- Whether an accused charged under Section 27 of the Drugs Act, 1976 is entitled to post-arrest bail when facing allegations of manufacturing or selling spurious drugs?
- Does an offence carrying a punishment of up to ten years imprisonment under the Drugs Act, 1976 fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Can a previous conviction for a similar offence under the Drugs Act, 1976 serve as a ground for refusing post-arrest bail to an accused?
- Section 23, Drugs Act 1976
- Section 27, Drugs Act 1976
- Section 30, Drugs Act 1976
- Section 19(b), Drugs Act 1976
- Section 103, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
- Section 27(i)(a), Drugs Act 1976
ORDER
1. The applicant is facing trial before the Drug Court of Sindh at Karachi in Crime No, 22/2010, P.S. FIA Crime Circle, Karachi u/S. 23 punishable u/S. 27 R/W Section 30 of Drugs Act, 1976.
2. We have heard Mr. Khaleeq Ahmad, learned for the applicant and Mr. Muhammad Ashraf Mughal; learned DAG for the State along with S.I. Liaquat Ali, I.O. FIA.
3. Learned counsel for the applicant has firstly argued that the FIR was registered under violation of Section 19(b) of Drugs Act and Section 103 Cr.P.C. while the FIA has no power to register the FIR. It is further contended that the alleged offence does not fall within the Prohibitory Clause u/S. 497 Cr.P.C. and the applicant is no more required for further investigation as he is in judicial custody. It is further contended on behalf of the applicant that there is no test report regarding' the spurious drug.
4. On the other hand learned DAG contended that the raid was conducted in presence of the Magistrate, Drug Inspector and two private independents witnesses. The challan has been submitted. It is further contended that the applicant was previously convicted by the learned Court in Case No, 47/2009 as he had pleaded guilty. Learned DAG further contended that the conviction provided u/S. 27 R/W Section 30 Drugs Act is 10 years imprisonment and does fall within the prohibitory clause u/S. 497 Cr.P.C.
5. We have considered the submissions advanced at Bar and have also gone through the relevant record. Admittedly, the raid was conducted in presence of Magistrate, Drug Inspector Syed Adnan Rizvi and private witnesses namely Haroon Tariq, Abdul Ghafoor and Muhammad Faraz (complainant). The report is in positive. We have also noticed that the applicant along with his brother Kashif were convicted in Case No, 47/2009 by Drug Court Sindh at Karachi on 7th January, 2010 and convicted the appellants to the detention till rising of the Court and to pay fine of Rs, 20,000/- each or in default of payment of fine to suffer R.I for 3 months each by taking a lenient view while the punishment provided u/S. 27(i)(a) Drugs Act, 1976 is for a term which shall not be less than three years or more than 10 years and with fine which may extended to Rs, 100,000/-. We have also observed that the applicant is a habitual offender of spurious drugs and playing with the lives of the Innocent people. In the previous case the learned trial Court has taken a lenient view.
6. In such a situation, we cannot take further leniency in favour of the applicant. The bail application merits no consideration. Accordingly, the same was dismissed by our short order dated 22.12.2010 and above the reasons of the same.