Atta Ullah vs The State

ORDER

ALI BAIG, J.---Through the instant bail petition filed under section 497, Cr.P.C., the petitioner/accused namely Atta Ullah son of Firdous seeks post arrest bail in case FIR No.98/2019 dated 25-11-2019 registered under section 9, C.N.S.A., 1997 at Police Station City Chilas.

2. Succinctly , the prosecution case as narrated in the FIR lodged by complainant namely Zafar Iqbal, ASIP , is that on 25-11-2019, having received spy information that the petitioner was keeping charas in his possession at his residential house situated at Public School Colony Chilas and carrying business of charas, the complainant and his other companion constables namely Tanveer Ahmed and Tariq Jamil raided the house of the petitioner . The raiding party took into possession 1000 grams charas from a room of house of the petiti oner/accused. The raiding party separated 10 grams charas from the alleged recovered 1000 grams charas for sending to the chemical examiner for examination, whereas, remaining 990 grams charas was sealed into parcel as case property . The petitioner/accused was also arrested from his residential house.

3. The learned counsel appearing on behalf of the petitioner/ accused has contended that the petitioner/ accused is innocent and he has falsely been implicated in this case with mala fide intention. The learned counsel for the petitioner has further argued that the police has searched/ raided the house of the petitioner without obtaining search warrant from the court of competent jurisdiction; hence, the police have committed material irregularity and illegality while raiding the house of the petitioner . The learned counsel for the petitioner has further argued that as per prosecution version 1000 grams charas was allegedly recovered from the house of the petitioner , therefore, this is a border line case in between Clause "b" and Clause "c" of section 9 of Control of Narcotic Substances Act, (C.N.S.A.) 1997; hence, the case of the petitioner needs further . inquiry and the petitioner is entitled for concession of bail. The learned counsel for the petitioner has further argued that the petitioner is a patient of hepatitis "B"; therefore, the petitioner is also entitled for concession of bail on medical ground.

4. On the other hand, the learned Additional Advocate General vehemently opposed this bail petition by contending that the petitioner/accused is directly charged in the promptly lodged FIR and 1000 grams charas has been recovered from the possession of the petitioner . The learned Additional Advocate General has further argued that offence under section 9(c) of C.N.S.A., 1997 falls within the ambit of prohibitory clause of section 497, Cr.P.C.; therefore, the petitioner is not entitled for concession of bail. Concluding his arguments, the learned Additional Advocate General has argued that the petitioner/accused carries business of narcotics which is a menace as it bedeviling the entire society; therefore, the bail petition of the petitioner may be dismissed.

5. I have given my anxious consideration to the contentions raised by learned counsel for the parties and have also gone through the record with their able assistance.

6. From perusal of record, it transpires that the police have raided the house of the petitioner without obtaining search warrant as required under section 98, Cr.P.C. The SHO/IO was bound under law to obtain a search warrant from the competent court before raiding/entering into the house of the petitioner /accused and without satisfying requirement of law, the police cannot enter into the residential premises without search warrant. In the instant case, the raiding party despite having prior information did not bother to obtain search warrant from a competent court and conducted the raid at the house of the petitioner without showing circumstances to justify such raid without search warrant.

7. Although section 25, of C.N.S.A., 1997 provided that revisions of section 103, Cr.P.C. are not as such applicable to the cases under the aforesaid Act but this provision does not exempt the requirement of search warrant and prior permission for entry into the residential premises for the purpose of search, the special provisions relating to search and arrest under C.N.S.A., 1997, are not as such inconsistent to the provisions of Code of Criminal Procedure or are above the Constitution. The special provisions of section 25 or sections 20 and 21 of C.N.S.A., 1997 do not as such permit violation of constitutional guarantee of privacy and dignity of man. The SHO/police were bound to strictly follow the law. In this connection, reference is made to the reported judgment of the Hon' ble Supreme Court of Pakistan reported in PLD 2008 SC 376. Moreover , in the case in hand, as per prosecution version 1000 grams charas was allegedly recovered from the petitioner/ accused, therefore, this is a border line case in between Clause "b" and Clause "c" of section 9 of C.N.S.A., 1997 and this aspect requires further inquiry to determine guilt of the petitioner and petitioner is entitled for concession of bail.

8. Furthermore, the petitioner is a patient of hepatitis "B" as evident from a report of Diagnostic Lab of Nuclear Medicine and Radiotherapy Institute Islamabad.

9. The upshot of the above discussion is that this petition is allowed. Consequen tly, the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.200,000/- with two sureties each in the like amount to the satisfaction of any V ocational/Duty Judicial Magistrate at Chilas. File.