G IRFAN ALI vs THE STATE
This matter comes before the Sindh High Court on an application for post-arrest bail arising from the alleged recovery of two kilograms of charas from the applicant, out of which five hundred grams were separated as a sample. The core legal question concerns whether bail should be computed based on the total weight of the recovered contraband or the weight of the sample sent for chemical analysis, and whether the absence of an affirmative Chemical Examiner report at the pre-trial stage constitutes a case of further inquiry. The court held that pending the receipt of an affirmative chemical report and considering the weight of the sample falling under a provision outside the prohibitory clause, the case warrants the grant of bail. The key principle laid down is that the absence of a chemical report and reliance on the sample weight for potential conviction can bring the case within the scope of further inquiry, making bail the rule rather than the exception.
- Whether the absence of a Chemical Examiner report entitles an accused to post-arrest bail on the ground of further inquiry?
- Whether bail should be considered based on the total weight of the recovered narcotics or the weight of the sample?
- Does an offence under Section 9(b) of the Control of Narcotic Substances Act 1997 fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 497(1), Code of Criminal Procedure 1898
1. ORDER SYED ZAKIR HUSSAIN, J. ---The case pertains to the recovery of the charas from the applicant effected by the police party while on patrolling on the date, place and time under a memo prepared to such effect before the official mashirs. The charas when weighed was found to be two Kgs, out of which 500 grams were secured as sample. There is no expert report. The case has been charge-sheeted. As per the learned counsel, for the purpose of bail, the case has to be construed capable of fetching conviction, if any, against the said secured charas, to the extent of the weight of the sample charas, which being 500 grams, falls within the ambit of section 9(b), which provides punishment up to seven years maximum, which falls beyond prohibitory clause. As per the learned counsel, where there appears a case of punishment beyond prohibitory clause, the grant of bail is to be dealt with as rule. There is no case of exception to justify any in application of the said rule.
2. Learned counsel further states that so long as the Chemical Examiner report in affirmative, is not available in the case, the case will carry a status of further enquiry and on such score alone the benefit of bail can be extended by this Court to the applicant in the interest of justice. Learned counsel relied upon the case of Abdul Wahid v. The State reported as 2009 M LD 1151. Learned State Counsel opposes the grant of bail in the matter on the ground that the weight of secured charas is two Kgs and the punishment as a matter of criminal accountability thereof is up to life imprisonment in terms of section 9(c) of the Control of Narcotic Substances Act, 1997. According to her contention, the case falls within the prohibitory clause of section 497(1), Cr.P.C. And therefore merits rejection. She is however, unable to dispute the citation of law referred to, by the learned counsel for the applicant in all respect. The same is applicable in the circumstances in hand. I, therefore, relying on the same, grant the bail to the applicant in the sum of Rs.50,000 with P.R bond in the like amount to the satisfaction of the learned trial Court.