MEHMOOD KHAN vs STATE and another
The petitioner sought post-arrest bail in a case registered under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, following the recovery of alleged contraband (Lahan and liquor) from his residence. The core legal question was whether the petitioner was entitled to bail given the nature of the offence and the status of the investigation. The Court observed that the FIR lacked allegations of selling liquor, rendering Article 3 prima facie inapplicable. Regarding Article 4, the Court noted that the offence carries a maximum penalty of two years, making it bailable, and that it did not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. Furthermore, the Court highlighted that the Chemical Examiner's report was still pending, precluding a definitive finding on the nature of the recovered substances. Consequently, the Court held that as the petitioner was no longer required for investigation and the trial had not commenced, continued incarceration was unjustified. The petitioner was admitted to bail subject to furnishing surety bonds.
- Does an offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Can bail be granted when the Chemical Examiner's report regarding the nature of the recovered contraband is still pending?
- Article 3, Prohibition (Enforcement of Hadd) Order, 1979
- Article 4, Prohibition (Enforcement of Hadd) Order, 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
' Mehmood Khan, the petitioner seeks post-arrest bail in case FIR No. 43 dated 29.1.2015 registered under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 at Police Station Kaloorkot, District Bhakkar.
2. As per the FIR, on a tip-off the complainant, ASI Muhammad Arif along with Police officials conducted a raid on the house of the petitioner and took into possession five cans containing 1100 liters of "Lahan", 110 liters of liquor. 06 ounce liquor was taken out and separated from each can so as to be sent to the Chemical Examiner.
3. Arguments heard. Record perused.
4. There is no allegation in the FIR that the petitioner was busy selling liquor. On the face of it, the provisions of Article 3 are not attracted. As for the alleged offence under Article 4 of the Prohibition (Enforcement of Hadd)
Order, 1979, it carries a penalty of 02 years' imprisonment, coupled with fine. Prima facie, this offence is bailable. Even if the relevant provisions are construed otherwise, this offence does not fall within the prohibitory clause of Section 497, Cr.P.C. In the instant case, the report of the Chemical Examiner is still being awaited.
Therefore, it cannot be prejudged as to whether the contraband recovered from the petitioner was liquor or not.
5. The petitioner has been behind the bars since 16.2.2015. He is no more required for investigation and his further incarceration, without the holding of the trial, would not serve any purpose.
6. For what has been stated above, the petitioner is admitted to bail, subject to his furnishing bail/surety bonds in the sum of Rs. 100,000/- (rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court.