Raja Khan vs NOT
This matter concerns a post-arrest bail application filed by the applicant, Raja Khan, who was charged under Section 9(c) of the Control of Narcotic Substances Act, 1997, following the alleged recovery of 1800 grams of Charas. The core legal question was whether the applicant was entitled to bail given the quantity of the contraband and the failure of the police to associate independent witnesses from a populated area. The Court held that the alleged recovery of 1800 grams of Charas, when assessed against the policy regarding the quantum of sentence, resulted in a maximum potential punishment that did not fall within the prohibitory clause of Section 497, Code of Criminal Procedure 1898. Furthermore, noting that the prosecution did not allege prior criminal involvement or a need for further custodial investigation, the Court determined that continued incarceration was not justified. Consequently, the applicant was admitted to post-arrest bail, establishing the principle that cases involving narcotics quantities that do not attract the prohibitory clause of Section 497, Code of Criminal Procedure 1898, generally warrant the grant of bail absent other compelling factors.
- Does the recovery of 1800 grams of Charas fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Is an accused entitled to post-arrest bail when the maximum potential sentence for the alleged narcotics offense does not trigger the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Does the absence of independent witnesses in a narcotics recovery case provide grounds for further probe in a bail application?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 497, Code of Criminal Procedure 1898
SALAHUDDIN PANHWAR, J--Through instant application, applicant Raja Khan seeks post arrest bail in crime No.130 of 2013, under section 9(c) of CNS Act, 1997, P.S A-Section Nawabshah, District Shaheed Benazirabad.
02. Precisely, the relevant facts are that complainant alongwith subordinate staff was on patrolling, while he received a tip-off that applicant Raja Khan is standing at agricultural More(turn), Van stop, with black colour shopper, having Charas therein. On receiving such information they reached at the pointed place and apprehended applicant. During search, they found charas weighing 1800 grams; consequently: after completing codal formalities complainant registered instant case. After usual investigation, accused was sent-up for trial.
03. Learned counsel for the applicant, inter-alia, contends that the applicant has been booked falsely by the police in the instant false case; alleged recovery is 1800 grams and according to the case of GHULAM MURTAZA v. STATE (PLD 2009 Lahore-362), this case does not fall within prohibitory clause of section 497 Cr.P.C; though the place, from where alleged arrest and recovery was effected, was thickly populated area, but patently no efforts were made to join the independent witnesses as mashirs, accordingly it requires further probe.
04. Learned A.P.G. while refuting the claim of the applicant argued that the instant crime is against the society therefore applicant is not entitled for post arrest bail.
05. Since, the alleged recovery affected from applicant is 1800 grams of contraband narcotics substance which is charas and dictum laid down in the case of GHULAM MURTAZA (supra), provides a policy regarding quantum of sentence, and it varies according to the nature of contraband narcotics substance. Such judgment is endorsed by the honourable apex Court in the case of AMEER ZEB v STATE (PLD 2012 SC 380 and another case of FAREEDULLAH v. STATE (2013 SCM R 302).
The case in hand, if considered in view of such framed policy, the maximum punishment in instant case may, at the most, come as 04 years and 06 months. The position, being so, makes it clear that instant case does not fall within the prohibitory clause of sub-section (1) of Section 497, Cr.P.C.
Moreover, prosecution has not claimed that the applicant is previously involved in same nature of the cases nor the prosecution claims custody of the applicant/accused for any purpose of investigation, therefore, keeping the applicant / accused behind the bar would not be within line of Criminal Administration of justice.
06. Keeping in view the above given circumstances, prima facie, applicant has succeeded to bring his case within the purview of subsection 2 of section 497 Cr.P.C, for this reason, he is admitted to post arrest bail subject to furnishing solvent surety in the sum of Rs.50,000/-(Rupees fifty thousand) and PR bond in the like amount to the satisfaction of trial Court.