MUHAMMAD MUSSADIQ vs STATE and another
This is a post-arrest bail petition filed under Section 497 of the Code of Criminal Procedure 1898 in respect of FIR No. 153 of 2019 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997, involving the alleged recovery of 1150 grams of Charas from the petitioner. The core legal question was whether the marginal excess of the recovered narcotic over the threshold, coupled with ambiguity regarding whether the weight included the plastic wrapping bag, makes the case one of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The Lahore High Court held that since it was unclear whether the Charas was weighed with or without the plastic bag, the net weight requires determination during trial, bringing the case within the scope of further inquiry. The court laid down the principle that where recovered narcotics marginally exceed the statutory threshold and the inclusion of packaging weight is doubtful, the matter warrants the grant of post-arrest bail pending trial.
- Whether post-arrest bail should be granted when the recovered narcotic substance marginally exceeds the statutory threshold?
- Does ambiguity regarding whether the weight of a recovered narcotic includes its plastic packaging constitute a case of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Can the exact net weight of narcotics determined by weighing along with a packaging bag be a ground for bail pending trial?
- Section 497, Code of Criminal Procedure 1898
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 497(2), Code of Criminal Procedure 1898
ORDER
Through the instant petition under Sectio n 497, Cr.P.C, the petitioner , namely Muhammad Mussadiq is seeking post-arrest bail in the case FIR No. 153 of 2019 dated 28.03.2019 registered at Police Station Dehli Gate, District Multan, in respect of an of fence under Section 9(c) of the Control of Narcotic Substances Act, 1997.
2. As per record, the allegation against the petitioner is that on 28.03.2019 he was apprehended by the police and 1150 grams of "Charas"was allegedly recovered from his possession.
3. Arguments heard. Record perused.
4. The weight of the allegedly recovered narcotics is slightly higher than the maxim um weight mentioned in Section 9(b) of the Control of Narcotic Substances Act, 1997. Obviously a meagre quantity of narcotics substance i.e. 150 grams has brought the case of the present petitioned within the mischief of Section 9(c) of the Control of ' Narcotic Substances Act, 1997. It has been mentioned in the FIR that the above mentioned "Charas" was wrapped in plastic bag at the time of alleged recovery . It is not clear from the contents of the FIR, as to whether the "Charas" was taken out of the plastic bag or the same was weighed along with it when the same was being weighed by the complainant. It will be determined, after recording of the evidence, that what was the net weight of the allegedly recovered "Charas" and as to whether the case of the petitioner falls under Section 9(b) of the Control of Narcotic Substances Act, 1997 or it comes under the ambit of Section 9(c) of the Control of Narcotic Substances Act, 1997.
Reliance is placed on the case of ATEEB UR REHMAN (a), ATTI MOCHI versus The STATE and others (2016 SCMR 1424 ) wherein the august Supreme Court of Pakistan has held as under:-- "After hearing the learned counsel for the petitioner , learned Additional Prosecutor General Punjab and perusing the material available on record, we have noticed that when the petitioner was apprehended, 1014 grams of heroin was allegedly recovered from a shopper bag which he was carrying in his right hand, On Court query , the learned Additional Prosecutor General, after going through the recovery memo. available on the file of police record, could not show that the recovered heroin was weighed along with the polythene bag or otherwise. If the recovered heroin was weighed along with the polythene bag, prima facie, the weight of the heroin without the polythene bag, if weighed, might have come to 1000 grams or less than that and in that even tuality , the case of the present petitioner would have fallen within the ambit of Section 9(b) of the Control of Narco tic Substances Act, 1997. In this backdrop, the case of the petitioner becomes one of further enquiry falling within the purview of Section 497(2) of the Code of Criminal Procedure."
Reliance is also placed on the case of "Saeed Ahmed Vs. State through P.G. Punjab and another " (PLJ 2018 SC 812) wherein it has been held as under:-- "The record reveals that the petitioner has been found in possession of 1350 grams of charas. Since the substance recovered marginally exceeds 1 kg. we doubt petitioner could be awarded maxi mum sentence provided by the statute. The fact that he has been in jail for more than seven months and his trial is not likely to be concluded in the near future would also tilt in favour of grant of bail rather than refusal."
The, learned Deputy District Public Prosecutor states that the petitioner is not involved in any other case of the same nature.
5. For the foregoing reasons, the petition in hand is accepted and the petitione r is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.200,000/- (Rupees two hundred thousand only) with two sureties each in the like amount to the , satisfaction of learned trial, Court.
6. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial Court.