RAWAL vs THE STATE
This bail application arose from a prosecution under Section 9(c) of the Control of Narcotic Substances Act, 1997, following the applicant's arrest and the recovery of 1025 grams of charas. The applicant sought post-arrest bail on the grounds that no private mashir was associated with the recovery despite the arrest occurring in a thickly populated area, and that the quantity of narcotics placed the case on the borderline between Sections 9(b) and 9(c) of the Act. The High Court of Sindh observed that although Section 25 of the Control of Narcotic Substances Act, 1997 excludes the operation of Section 103 of the Code of Criminal Procedure, 1898, the police should have associated private witnesses when acting on prior spy information. Furthermore, the court noted that the sample of 10 grams taken from the four slabs was a meagre quantity and the case fell on the borderline. Finding that the possibility of false implication could not be ruled out, the court held that the case required further inquiry and admitted the applicant to bail.
- Whether the police are required to associate private witnesses during a narcotics raid on prior information despite the exclusion of Section 103 of the Code of Criminal Procedure, 1898 by Section 25 of the Control of Narcotic Substances Act, 1997?
- Can a narcotics case involving a quantity slightly above the threshold of Section 9(b) be considered a borderline case fit for further inquiry under Section 497(2) of the Code of Criminal Procedure, 1898?
- Does the failure to associate private witnesses in a thickly populated area during a recovery based on prior spy information make the prosecution's case doubtful for the purposes of bail?
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 25, Control of Narcotic Substances Act 1997
- Section 103, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. ' MUHAMMAD TASNIM, J.---Applicant is booked in Crime No,128 of 2011 of Police Station Hussainabad, Hyderabad under section 9(c) of C.N.S. Act, 1997. In the first place, applicant applied for bail before the learned Special Judge, CNS Hyderabad, who dimissed the bail application per order dated 21- 10-2011. Against aforesaid order, present,bail application has been filed.
2. ' Facts of the prosecution case as set out in the F.I.R. Are that complainant on receipt of spy information, apprehended the present applicant along with other police officials, After arrest, he disclosed his name as also from his possession; a bag was recovered containing 4 slabs of charas, which were subsequently weighed 1025 grams and 10 grams of charas from all four slabs were taken and sent to chemical examiner and remaining 1015 grams of charas were sealed separately.
3. ' Learned counsel for the applicant submits that though the arrest of applicant took place in the thickly populated area, but no private mashir was associated at the time of his arrest. He says that no private person was associated for the alleged recovery. He further says that case pertains to borderline and it is yet to be decided as to whether case of the applicant falls under section 9(b) or 9(c) of CNS Act; He says that applicant has been falsely implicated in this crime. He further says that applicant is labourer working in a cotton Mill and he has been involved first time by the police and no other case is pending or he is booked in other Crime.
4. ' On the other hand, learned A.P.-G. Has opposed the grant of bail and has supported the order passed by learned trial Court.
5. ' From the tentative assessm ent of the record, it appears that arrest of the applicant was effected in a thickly populated area and alleged recovery was also made by the police, but no private witness was associated at the time of his arrest and recovery. No doubt, section 25 of CNS Act exclude the operation of section 103, Cr.PC. But in all fairness, when arrest and recovery is being made by the police on prior information, police should have arranged private person from vicinity to act as mashir/witness for arrest and recovery. Secondly, sample, obtained by the police of 10 grams from four slabs of charas appears to be a meagre quantity and this case otherwise, seems to be borderline case. Even otherwise, case of prosecution appears to be doubtful and false implication of the applicant can not be ruled out at this stage, therefore, the 'case of present applicant requires further inquiry in terms of subsection (2) of section 497, Cr.P.C.
6. ' Accordingly, applicant is admitted to bail, on his furnishing solvent surety in the sum of Rs,50,000 (Rupees fifty thousand) and PR bond in the like amount, to the satisfaction of learned trial Court.
Cited by 1 case
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