NADEEM ASHRAF vs The STATE and others

' TASSADUQ HUSSAIN JILLANI, J.---Petitioner seeks bail in a case registered vide F.I.R. No, 24 dated 7- 9-2012 under section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station ANF, Sialkot wherein the allegation is that on the fateful day he came to the office of the Skynet cargo, Sialkot to book two cartons and that when he was apprehended and the cartons were opened heroin weighing 945 grams was recovered from 26 elevators and 420 grams of heroin was recovered from the other 10 elevatoRs, According to learned counsel the entire heroin recovered from 26 elevators was mixed together and only 10 grams was sent to the office of the Chemical Examiner for analysis and similarly the heroin recovered from the other 10 elevators was also mixed and only 10 grams was sent for analysis. The total heroin which was sent and tested by the office of the Chemical Examiner, in the afore-referred circumstances, he added, would tome only to 78.34 grams and the petitioner can only be convicted for the heroin which was sent and tested for analysis in view of the law laid down by this Court in Ameer Zeb v. State (PLD 2012 SC 380). The offence in these circumstances, he further added, would fall within the mischief of section 9-A of the C.N.S.A. And not 9-C.

2. Learned Special Prosecutor, Anti-Narcotics Force opposed the petition and submitted that the case relied upon by the petitioner is an appeal case; the evidence is yet to be recorded and the trial Court or the prosecution can always lead additional evidence with a view to render complete assistance to the court.

3. We have considered the submissions made and find that the judgment to which reference has been made by learned counsel or the petitioner was in a criminal appeal when the entire evidence had been led and the court after considering the said evidence came to the conclusion as reflected in para 8 of the said judgment which reads as follows:- "8. For the purposes of clarity and removal of confusion it is declared that where any narcotic substance is allegedly recovered while contained in different packets, wrappers or containers of any kind or in the shape of separate cakes, slabs or any other individual and separate physical form it is necessary that a separate sample is to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical analysis and if that is not done then only that quantity of narcotic substance is to be considered against the accused person from which a sample was taken and tested with a positive result."

4. Admittedly the trial has yet to commence and it would be rather presumptuous on the part of the petitioner to infer that the prosecution would lead evidence only to the extent of the weight to which reference has been made by petitioner's learned counsel. It is always open for the parties and in this case for the prosecution to lead further evidence and to request the court that it be allowed to send the entire narcotics allegedly recovered from the petitioner for chemical analysis.

5. For what has been discussed above, we do not find any merit in this petition, which is dismissed and leave refused.