ASIM KHAN vs STATE
This matter arose out of a post-arrest bail application filed by the petitioner before the Peshawar High Court, following dismissal of his earlier bail application by the court below. The case stemmed from FIR No. 589 dated 22.09.2017 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997, at Police Station Phando, Peshawar, alleging the recovery of six kilograms of charas garda from a shopping bag hanging on the safeguard of a motorcycle driven by the petitioner. The core legal question was whether the petitioner had made out a case for grant of post-arrest bail on the ground of further inquiry. The High Court held that the petitioner was entitled to bail. The court laid down that an unexplained seven-day delay in dispatching samples to the chemical examiner, coupled with a material discrepancy regarding the physical description of the narcotic substance between the FIR and the laboratory report, and the absence of documentary proof connecting the accused to the vehicle, creates reasonable doubt warranting further probe at the bail stage.
- Whether an unexplained delay of seven days in transmitting narcotic samples to the laboratory casts sufficient doubt on the prosecution case to warrant bail on the ground of further inquiry?
- Does a material contradiction between the physical description of contraband in the FIR and the chemical examiner's report entitle an accused to the grant of post-arrest bail?
- Whether the lack of documentary evidence establishing the accused's connection with the vehicle from which narcotics were allegedly recovered makes out a case for further inquiry under bail jurisprudence?
- Section 9(c), Control of Narcotic Substances Act 1997
The bail application of the petitioner was dismissed by the Court below, therefore, he has now moved instant application seeking the same relief in case FIR No, 589 dated 22.09.2017 registered under Section 9(c), CNSA of Police Station Phando, Peshawar.
2. As per contents of the FIR, police of the concerned police station received information to the effect that narcotics would be smuggled to District Nowshera through motorcycle. A motor cycle came there which was signaled to stop. The driver of the motorcycle disclosed his name as Asim Khan. The search of the motor cycle led to the recovery of 6 Kg charas garda consisting of 6 packets. Samples were taken from each packet for the purpose of chemical examination whereas the rest was sealed into a parcel. The accused was arrested and the instant case was registered against him.
3. Arguments of learned counsel for the parties heard and record perused.
4. Accused petitioner has been charged on 22.9.2017 for trafficking of narcotics which was recovered from a shopping bag tangling on the safeguard of the motorcycle. From the recovered stuff, samples were separated for the purpose of chemical analysis and were sent to the FSL laboratory on 29.9.2017. The delay of 07 days in sending the samples for analysis has not been explained. The discreption of charas as shown in the FIR was charas garda which is a soft form of charas but the report of chemical examiner shows the physical discreption of the charas as brown solid which casts shadow of doubt on the sanctity of the prosecution case. In addition to the above, no documentary proof is available on record connecting the motorcycle with the petitioner from which the recovery has been effected. The petitioner is behind the bars since his arrest and is no more required for investigation. Thus taking a tentative assessment of the available record and in view of the circumstances mentioned herein above, the case of the accused petitioner needs further probe.
5. These are the reasons for the short order even dated.