ALAMGIR vs STATE
The petitioner Alamgir sought post-arrest bail in case FIR No. 275 dated 8.3.2012 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997, at Police Station Bana Mari, Peshawar, following the recovery of 48 kilograms of chars from secret cavities of a stationary truck. The core legal question was whether the petitioner, who was standing near the truck and claimed ownership of the vehicle but was neither its driver nor conductor, was entitled to bail given that the ownership of the narcotics was traced to another accused during the investigation. The Peshawar High Court held that the case fell within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure, 1898, as no narcotics were recovered from the personal or exclusive possession of the petitioner and his conscious knowledge was a matter for trial. The court laid down the principle that an accused cannot be tagged to a crime on mere presumption and assumption when recovery is not from personal possession and investigation attributes ownership of the contraband to a co-accused.
- Whether an accused found standing near a vehicle containing narcotics, but who is neither its driver nor conductor, is entitled to post-arrest bail?
- Does the absence of personal or exclusive recovery of narcotics from an accused make the case one of further inquiry under criminal law?
- Can an accused be connected to a narcotics crime on mere presumption and assumption regarding conscious knowledge?
- Section 9(c), Control of Narcotic Substances Act 1997
Petitioner Alamgir seeks bail in case FIR No, 275 dated 8.3.2012 registered for offence u/S. 9(c) CNSA at Police Station Bana Mari District Peshawar.
2. The local police of Bana Mari received information to the effect that on Ring Road near Mujaddid CNG, a truck bearing Registration No, E-3979 was standing being out of order containing narcotics.
Believing the same to be true, they proceeded to the spot where the said truck was found standing and claimed ownership by the petitioner. Search was carried out of the truck wherefrom its secret cavities 48 KGs of chars was recovered, which was taken into possession, hence the case was registered against the accused.
3. Learned counsel for petitioner contended that the recovery has not been effected from personal or exclusive possession of the petitioner, therefore, he cannot be linked with the crime; that the petitioner was enroped on the basis of being standing near the truck, therefore, it was presumed that he was the person who was carrying the narcotics, which allegation cannot hold the field as nothing was recovered from him upon his personal search and that he was not in conscious knowledge regarding presence of narcotics therein, thus, on the above premises it was argued that the case of petitioner is one of further inquiry.
4. On the other hand, learned State counsel while opposing this petition contended that huge quantity of narcotics has been recovered from the truck ownership whereof has been claimed by the petitioner, moreso, when he was directly charged in the FIR and was arrested on the spot, therefore, in this view of the matter, the accused/petitioner is not entitled to the concession of bail.
Arguments heard. Record perused.
5. Albeit huge quantity of narcotics has been recovered from the truck and at the relevant time the petitioner was found standing near the same but the record reveals that he is neither driver nor conductor/cleanser of the truck, therefore, on mere presumption he cannot be tagged with the alleged crime. No recovery of narcotics has been effected from personal or exclusive possession of the petitioner, therefore, the question of his conscious knowledge regarding presence of narcotics in the truck would be dealt with by the learned trial Court. Additionally, the petitioner has never been seen by the informer or any other person loading or unloading the truck, hence on mere presumption and assumption he cannot be connected with instant crime. Moreover, during the investigation, it came to limelight that the narcotics so recovered was owned by accused Muhammad Rafique son of Niamat Gul resident of Khyber Agency, therefore, when the petitioner is neither driver nor cleanser/conductor of the truck and when the said accused claimed ownership of narcotics, which fact has been established during the investigation, thus, in the given circumstances case for further inquiry is made out. Let the prosecution answer the above lacunas in the trial but till stage comes, the petitioner cannot be kept behind the bars for indefinite period.
This petition was allowed vide short order of even date and above are reasons for the same.