SAFIR KHAN vs THE STATE
This matter arises from a bail petition filed by the petitioner Safir Khan after the lower forum refused pre-trial release in a narcotics case registered under FIR No. 1272 dated 28-9-2010 at Police Station Agha Mir Jani Shah, Peshawar, involving the alleged recovery of 2-kg of chars. The core legal question concerns whether the recovery of 2-kg of chars brings the case under the prohibitory clause or warrants further inquiry regarding the quantum of punishment under Section 9(c) of the Control of Narcotic Substances Act, 1997. The Peshawar High Court held that the case falls for further inquiry as the punishment under Section 9(c) varies according to the circumstances and rests on judicial discretion, and it has been the practice to extend bail unless special circumstances like previous conviction exist. The court laid down the principle that where the quantum of recovery leaves the exact applicable punishment and its inclusion in the prohibitory clause open to judicial discretion, the accused is entitled to the concession of bail.
- Whether the recovery of 2-kg of chars makes an accused liable to the prohibitory clause of Section 9(c) of the Control of Narcotic Substances Act, 1997?
- Does the quantum of recovery under Section 9(c) of the Control of Narcotic Substances Act, 1997 warrant further inquiry for the purpose of bail?
- Is an accused entitled to bail as a matter of practice when the exact punishment depends on judicial discretion and no special circumstances like previous conviction exist?
- Section 9(c), Control of Narcotic Substances Act 1997
' MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner herein involved in case F.I.R. No, 1272 dated 28-9- 2010, Police Station Agha Mir Jani Shah, Peshawar, under section 9(c) C.N.S.A. After refusal of bail by the forum below has moved the instant petition for his release on bail.
2. On receipt of information while on patrol duty, Sajid Khan, A.S.-I., along with police party rushed to the spot and recovered 2-kg chars from the accused petitioner. He was arrested on the spot and a case vide F.I.R. Ibid was registered against him.
3. Mr. Arshad Hussain Yousafzai, counsel for the petitioner and learned A.A.-G. For State were heard and record of the case was perused.
4. Case of accused petitioner is that of further inquiry while considering the quantum of recovery, as the punishment provided for the offence is always in commensuration with the quantum of recovery of contraband/crime. In such like cases whether the accused would be liable to the maximum punishment provided for the offence remains the question requiring further probe and also whether the punishment in case of proof of the guilt after trial in the circumstances would fall under the prohibitory clause, as punishment provided in section 9(c) C.N.S.A. 1997 varies according to the circumstances of the case and it comes to the judicial discretion of the Court to punish the accused in commensuration with the quantity of recovery. Section 9(c) reads as under:-- "(9) Punishment for contravention of sections 6, 7 and 8.---Whoever contravenes the provisions of sections 6, 7 or 8 shall be punishable with-
(a) ..........................................
(b) imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram;
(c) death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b): ' Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life.
' In such like cases it remained the practice to extend the concession of bail to the accused unless any special circumstance appear in any particular case like the case of a habitual offender or pervious convict etc.
5. So, this application for bail is allowed and the petitioner is directed to be released on bail subject to furnishing bail bond in the sum of Rs,300,000 with two sureties, each in the like amount, to the satisfaction of Illaqa Judicial Magistrate/Magistrate on duty. The sureties shall be reliable and men of means.
' These were the detailed reasons for short order of even date i.e, 12-11-2010.
Cited by 1 case
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