YOUNAS KHAN vs THE STATE and anothers
The petitioner filed a bail application before the Peshawar High Court after being denied relief by the Additional Sessions Judge, Hangu, in a case registered under Section 9(c) of the Control of Narcotic Substances Act, 1997. The petitioner was apprehended during a police check, and 1 kilogram of charas was allegedly recovered from his possession. The core legal question was whether the petitioner was entitled to post-arrest bail given the nature of the recovery and the potential applicability of the prohibitory clause. Upon reviewing the record, the Court observed that the case fell within a borderline area between sub-clauses (b) and (c) of Section 9 of the Control of Narcotic Substances Act, 1997, as the quantum of punishment depends on the specific quantity recovered and the circumstances of the case. The Court held that since the applicability of the maximum punishment and the prohibitory clause required further probe, and given the absence of evidence regarding the petitioner being a habitual offender, the case warranted further inquiry. Consequently, the Court allowed the bail application, directing the petitioner's release upon furnishing bail bonds.
- Does a recovery of one kilogram of charas automatically trigger the prohibitory clause under the Control of Narcotic Substances Act 1997?
- Is a case involving a borderline quantity of narcotics between sub-clauses (b) and (c) of Section 9 of the Control of Narcotic Substances Act 1997 a fit case for further inquiry for the purpose of bail?
- Does the determination of whether an offence falls under the prohibitory clause depend on the potential quantum of punishment relative to the quantity of contraband recovered?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 9(b), Control of Narcotic Substances Act 1997
' MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner, having failed to get the concession of bail from the Court of Additional Sessions Judge, Hangu, in case F.I.R. No,3 dated 11-3-2011 Police Station Hangu, registered under section 9(c) CNSA, has now filed instant petition for the said purpose.
2. As per contents of the F.I.R., the complainant Javed Hussain IHC, duing the course of `nakabandi' near Shah Palace Hotel, stopped Suzuki No,3159-Peshawar-D for the purpose of checking and the personal search of petitioner led to the recovery of 1 k.g. Charas.
3. The learned counsel for the petitioner as well as the State were heard and record of the case was gone through.
4. Perusal of the record would reveal that it is a border line case between sub-clauses (b) and (c) of section 9 CNSA, as the punishment to be awarded for the offence is always in commensuration with the quantum of recovery of contraband/crime and the quantum of punishment has to be determined by the trial Court. In such like cases whether the accused would be liable to the maximum punishment provided for the offence and also as to whether the punishment in case of proof of the guilt after trial in the circumstances would fall under the prohibitory clause are the questions requiring further probe, as punishment provided under section 9(c) CNSA 1997 varies according to the circumstances of the case commensuration with the quantity of recovery. The record is also silent as to whether the petitioner is a habitual or previous convict etc. And all these facts makes the case against him as that of further inquiry.
5. So, this application for bail is allowed and the petitioner is directed to be released on bail subject to furnishing bail bond in the sum of Rs,200,000 (Rs,two lacs) with two sureties each in the like amount to the satisfaction of Illaqa /Judicial /Duty Magistrate. The sureties shall be reliable and men of means.