MUHAMMAD HASSAN vs THE STATE
This criminal bail application concerns the applicant, Muhammad Hassan, who sought post-arrest bail in a narcotics case registered under Section 9(b) of the Control of Narcotic Substances Act, 1997. The applicant was apprehended with 230 grams of charas, of which only 10 grams were sent for chemical examination. The core legal question was whether the applicant was entitled to bail given the potential classification of the offense under Section 9(a) of the Control of Narcotic Substances Act, 1997, which is bailable, rather than Section 9(b), and the lack of independent witnesses for the recovery. The Court held that the prosecution's case was not free from doubt and required further inquiry. Relying on the principle that bail is the rule and refusal the exception when an offense does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898, the Court admitted the applicant to bail. The Court emphasized that the observations made were tentative in nature and should not prejudice the trial court's final determination on the merits.
- Does the recovery of a small quantity of narcotics, where only a fraction is sent for chemical analysis, warrant the grant of bail?
- Is the grant of bail the rule and refusal the exception when an offense does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Can the absence of private witnesses in a recovery case constitute grounds for further inquiry in a bail application?
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 9(a), Control of Narcotic Substances Act 1997
- Section 497, Code of Criminal Procedure 1898
ORDER
' AQEEL AHMED ABBASI, J.--- Through instant criminal bail application, applicant M. Hassan Mallah seeks bail in Crime No,9 of 2010, registered at Police Station Badin, under section 9(b) Control of Narcotic Substances Act, 1997.
2. Bail plea raised on behalf of the application was declined by learned Sessions Judge, Badin vide order dated 23-2-2010, passed in Special Case No,4 of 2010.
3. Facts of the prosecution case, in brief, are that on 3-1-2010, at about 1930 hours the applicant was apprehended by the complainant/police party headed by SIP/S.H.O. Qamar Zaman Khoso of Police Station Badin, and he was allegedly found in possession of one big piece of Charas weighing 230 grams. Such mashirnama was prepared and 10 grams of charas was sealed separately, which was sent for chemical examination.
4. After registration of such F.I.R. And completing formal investigation, challan was submitted before the concerned court, wherein the applicant/accused was shown under arrest. However, according to learned counsel for the applicant charge has not yet been framed.
5. It is, inter alia, contended by learned counsel for the applicant that on the face of the record, the charge against the applicant is baseless, as he has been implicated in the instant crime on account of political rivalry with the local politician. It is further contended that no private witness or mashir of recovery has been cited and only police officials have been shown as mashirs despite of the fact that the incident allegedly took place at bus stop of Army Mills, which is a thickly- populated area. Learned counsel for the applicant states that out of alleged recovery of 230 grams of charas from the present applicant only 10 grains were sent for chemical examination. It is further stated that in view of these facts, the case of prosecution besides being false and fabricated attracts the provisions of section 9(A) Control of Narcotic Substances Act, 1997, which is bailable. In this regard he has placed reliance on the case of Younis v. State (2010 M LD 8 (Kar.), in which I has been held as under:-- "The applicant was apprehended with 10 pieces Charas total 1000 grams, whereas only one piece of 100 grams was sent for chemical examination. It is yet to be seen as to whether the remaining 9 pieces of charas weighing 900 grams was charas or not. No doubt 100 grams of charas brings the case of applicant within the definition of section 9-B, C.N.S. Act but is simply a friction of weight above the limits keeping the offence within the ambit of section 9-A, C. N. S. Act which is punishable with 2 years imprisonment and fine. When the offence does not fall within prohibition contained under section 497, Cr. P. C. Then the grant of bail is, a rule and refusal is exception. No exceptional circumstances disentitling the applicant for grant of bail has been pointed out."
6. Conversely, the learned D.P.G. Formally opposes the grant of bail to the applicant, however, could not forward any plausible argument in support of his contention.
7. I have heard both the learned counsel and perused the record. I am of the view that the applicant has been able to make out a case for grant of bail, as the prosecution story on the face of it cannot be held as free from doubt and it requires further inquiry.
8. Under the circumstances, the present applicant is admitted to bail subject to furnishing solvent surety in the sum of Rs,50,000 (Fifty Thousand) and P.R. Bond in the like amount to the satisfaction of the trial Court. However, if the applicant misuses' the concession of bail trial court shall be at liberty to initiate proceedings for cancellation of bail and forfeiture of the surety bond.
' Needless to mention that the observations made hereinabove are tentative in nature and the- trial Court shall not be prejudiced by any of such observation and decide the case on merits on the basis of evidence available before it.