HAMAYUN and anothers vs The STATE

' SHAH JEHAN KHAN AKHUNDZADA, J.---Accused-petitioners Hamayun and Salman Shah facing charge in case F.I.R. No, 351 dated 17-4-2013 registered at Police Station, Charsadda under section 9(c) Control of Narcotic Substances Act, 1997 was refused bail by the learned Additional Sessions Judge-V, Charsadda vide order dated 23-4-2013. Now they have moved this petition for his release on bail.

2. Brief facts of the case are that on 17-4-2013 Abdur Rashid Khan Inspector S.H.O. Along with police contingents was present at `Sardaryab Naka Bandi' point opposite Police Post Sardaryab when at 14-00 hours a Suzuki bearing No,G-0151 came from Peshawar side which was stopped and its driver disclosed his name as Hamayun son of Pio Rehman resident of Mohsin Khel Lachi District Kohat and the person sitting with him on the front seat disclosed his name as Salman Shah son of Taj Muhammad resident of Nodia Payan Bara Road, Peshawar. Both the accused were apprehended and on their pointation the said Inspector recovered two packets of Chars weighing 1500 grams from the secret cavity of the vehicle in question. Both the accused were arrested on the spot and a Murasila to this effect was drafted which was sent to the Police Station Charsadda for the registration of the case against them on the basis of which F.I.R. No,351 dated 17-4-2013 was chalked out.

3. Learned counsel for the petitioners contended that no recovery of contraband Chars was made from the personal and immediate possession of the accused-petitioners but the same was alleged to have been recovered from the vehicle. He further submitted that the accused- petitioners are neither previous convict nor involved in such like offence and this Court in similar cases up to recovery of four. Kilograms is of consistent view that in such like cases accused be allowed bail keeping in view the quantity of contraband recovered, therefore, the petitioners are also entitled to the concession of bail. He further contended that samples were sent after undue delay of nine days to the Chemical Examiner which is sheer violation of the Rules framed under C.N.S.A. And it is mandatory that samples shall be sent to FSL within seventy two hours, therefore, according to him on this score alone the accused-petitioners are entitled to the bail.

4. Learned State counsel opposed the grant of bail saying that Chars weighing 1500 grams has been recovered from the vehicle driven by accused-petitioner Hamayun while accused-petitioner Salman Shah was sitting with him in the front seat and FSL report in respect of the contraband is also in positive, therefore, the petitioners are not entitled to the concession of bail as the offence is covered by the prohibitory clause of section 497, Cr.P.C. But failed to rebut the second contention of the counsel for the petitioners regarding sending samples to the FSL beyond stipulated period.

5. After hearing the learned counsel for the parties and going through the record of the case I have come to the conclusion that arguments advanced by learned counsel for the accused-petitioner holds water. It is the consistent view of this Court that for the purpose of bail in such like offences the quantity of contraband and the expected quantum of punishment to be awarded at the trial has to be taken into account while allowing bail to the accused persons. As punishment for contraband of less than ten kilograms is . Up to fourteen years, therefore, keeping in view the recovered contraband the petitioners are not likely to be awarded punishment for more than two years. Moreover, the petitioners have joined investigation and complete challan has been submitted by S.H.O. As such they are no more required to the Investigating Agency. They are also neither previous convicts nor involved in such like offences. Thus /in view of the above consistent view of this Court, the case of the accused-petitioners is arguable for the purpose of bail.

6. Needless to mention here that so far as the question of sending the samples to the Chemical Examiner is concerned, the samples from contraband Chars were taken by the police on 17-4-2013 but according to FSL report, these were received there on 26-4-2013 after a delay of about nine days. Rule 4 and 5 of control of Narcotic Substances (Government Analysts) Rules, 2001 govern the mechanism of sending samples to government analyst. Sub-rule(2) of Rule 4 being relevant in matter in question, is, therefore reproduced in the following paragraph:-- "4(2). Samples may be despatched for analysis under the cover of a Test Memorandum specified in Form-I at the earliest, but not later than seventy two hours of the seizure. The envelope should be sealed and marked "Secret Drug Sample/Test Memorandum".

Perusal of the above provision of the said Rule referred above in an unequivocal manner envisages that the samples be sent to the FSL within seventy two hours, therefore, learned State counsel failed to account for delay in sending the samples to the FSL. There is nothing on record that as to why these samples were sent with such inordinate delay to the FSL. There is also no explanation available with the State counsel to show that whether these samples were kept in safe custody or not and who was responsible for keeping it unauthorizely for such a long period of about nine days.

Such delay in sending the samples to the Chemical Examiner by the police, cast a reasonable doubt on prosecution case as per well settled principle laid down by the august Supreme Court of Pakistan, makes the case of accused-petitioners arguable for the purpose of bail on account of further inquiry envisaged in subsection (2) of section 497, Cr.P.C.

7. Resultantly, this bail application is accepted and the accused-petitioners are allowed bail provided each of them furnishes hail bond in the sum of Rs,1,00,000 (Rupees One Lac) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate. The sureties must be local, reliable and men of means.

' The above are the reasons for my short order announced on 22-5-2013.