BILAL vs THE STATE
This bail petition arises from the refusal of the Additional Sessions Judge, Charsadda, to grant post-arrest bail to the petitioner, who was charged under Section 9(c) of the Control of Narcotic Substances Act, 1997, and the Arms Ordinance for the alleged possession of narcotics and illegal weapons. The core legal question was whether the petitioner was entitled to bail given the procedural lapses in the recovery process and the absence of forensic evidence. The court held that the petitioner is entitled to bail, finding that the investigating officer failed to obtain a search warrant as required by Section 20 of the Control of Narcotic Substances Act, 1997, despite having prior information. Furthermore, the absence of a Forensic Science Laboratory report confirming the nature of the recovered substances and the operability of the weapons created sufficient doubt regarding the prosecution's case. Consequently, the court determined that the case falls within the ambit of further inquiry under Section 497(2) of the Code of Criminal Procedure, 1898, rendering the petitioner's guilt a matter of arguable contention, thus justifying the grant of bail.
- Does the failure of the police to obtain a search warrant under Section 20 of the Control of Narcotic Substances Act 1997 constitute a ground for bail?
- Is the absence of a Forensic Science Laboratory report regarding recovered contraband sufficient to bring a case within the ambit of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Does the lack of evidence regarding the operability of recovered weapons entitle an accused to bail?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 20, Control of Narcotic Substances Act 1997
- Section 497(2), Code of Criminal Procedure 1898
' SHAH JEHAN AKHUNDZADA, J.---The petitioner is involved in case F.I.R. No, 646 dated 19-7-2012 under section 9(c) CNSA/13 AO registered at Police Station Tangi. He was refused bail by the learned ASJ Charsadda at Tangi vide his order dated 31-7-2012. Hence this petition.
2. The prosecution case as per contents of the F.I.R. Is that there was spy information that the accused-petitioner is selling contrabands in his shop situated at Sher Gul Khawar Koroona. On this information S.H.O. Police Station Tangi along with other police contingent, raided the said shop at 1230 hours on 19-7-2012. They found the accused in his shop, who disclosed his name as Bilal son of Usman ' Ali resident of Barazai Panra Jranda presently Sher Gul. Khawar Koroona. S.H.O. Conducted his personal search and recovered one .30 bore pistol without number along with 5 rounds from the fold of his Shalwar, while conducting the search of the shop; he recovered one .12 bore shotgun without number along with 10 cartridges and further search of the Counter of the shop by the said S.H.O. Led to the recovery. Of 5 full packets and one half packet of charas pukhta weighing 5500 grams in toto. He also recovered Rs,750 in cash containing notes of different, denominations from his pocket and scale along with bots (weights). He took into possession all the above article and.
Then, separated 515 grams from each packet and sealed the same into different parcels for chemical analysis of the said contraband through FSL, while the remaining charas weighing 5470 grams and other articles mentioned above were packed and sealed in another parcel, and then drafted Murasila in respect of the offence in question and sent it to the PS on the basis of which case F.I.R. No,646 dated 19-7-2012 was registered against the accused. He also arrested the accused and issued his card of arrest and then the case was entrusted to the investigation staff for further investigation, who prepared recovery memo and completed rest of the investigation.
3. I have heard the learned counsel for the parties and have perused the record of the case.
4. Record reveals that the S.H.O. Concerned has neither searched the shop in question after obtaining search warrant within the meaning of section 20 of the CNSA, in spite of the fact that he had prior information about the selling of narcotics by the accused-petitioner nor the FSL report in respect of the recovered stuff is available on record to show that the same was actually contrabands and that the arms and amununitions allegedly recovered are in workable condition or not In these circumstances arrest of the accused from his shop having in possession of contraband or illegal arms and ammunitions in the absence of fulfilment of the requisite formalities under section 20 CNSA and FSL report in. Respect of the alleged recovered articles, in my view, requires further probe into the guilt of the accused and as such his case falls within the ambit of subsection (2) of section 497, Cr.P.C., which makes the case of accused-petitioner arguable for the purpose of bail.
' In view of the above the application in hand is accepted and resultantly the accused-petitioner is allowed to be released on bail provided he furnishes bail bonds in the sum of Rs,100,000 (one lac) with two sureties each in the like amount to the satisfaction of the trial Court.