Mst. Husna Bibi vs The State
The petitioner Mst. Husna Bibi sought post-arrest bail in case FIR No. 1807 registered under Section 9-D of the KP Control of Narcotic Substances Act, following the alleged recovery of 3280 grams of heroin. The core legal question concerned the legality of the search and detention of a female accused by male police personnel on a public road in violation of statutory safeguards, alongside the delayed transmission to a women police station and the absence of a forensic report. The Peshawar High Court allowed the bail petition, holding that the search of a female accused by male police personnel on a public road without regard to decency, coupled with exclusive male custody and delayed transfer to a women police station, created serious doubts regarding the prosecution's case. The key principle laid down is that mandatory statutory safeguards regarding the search of women by female personnel must be strictly observed, and failure to do so, along with prolonged detention without an FSL report, entitles the accused to post-arrest bail.
- Whether a female accused is entitled to bail when searched by male police personnel in violation of statutory safeguards?
- Does the absence of an FSL report within a considerable period warrant the grant of post-arrest bail?
- Whether the retention of a female accused in exclusive male police custody vitiates the search proceedings?
- Section 9-D, KP Control of Narcotic Substances Act
- Section 52, Code of Criminal Procedure 1898
Musarrat Hilali J- Petitioner (Mst. Husna Bibi), through the instant petition, seeks her release on bail in case FIR No.1807 dated 06.09.2021 u/s 9-D KP CNSA, registered against her at police station Pishtakhara District Peshawar , wherein she was found in possession of four packets heroin weighing 3280 grams.
Arguments heard and appended record perused.
2. Under the provision of Criminal Procedure Code, a woman is entitled to spec ial treatment in matters of body search. Section 52 of the Cr.P.C provides that whenever it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency . Under no circumstances a male police personnel shall actually touch the person of a woman for making search or arrest.
3. In the instant case, as per the contents of FIR, the complainant found the petitioner standing on road side with a shopping bag in her hand. The shopping bag was searched on suspicion wherefrom allegedly narcotics were recovered. Admittedly , when the petitioner was searched by police on public road in presence of all male police personnel, the norms of decency could not have been observed. The question is that how the petitioner , who is pregnant of six weeks, was searched on road side where there was no prior information of her being involved in trafficking narcotics. It has also been noticed with great concern that though the FIR was registered against the petitioner at 1650 hours but she was sent to Women Police Station at 1950 hours i.e. after a delay of three hours during which she remained in exclusive male police custody as no female constable is shown to have been associated with the proceedings. The situation is extremely intolerable, undesirable and against the statutory and executive directions. That apart, despite lapse of 65 days, the prosecution has failed to produce the FSL report of the contraband allegedly recovered from the petitioner .
4. In view of the above, this bail petition is allowed.
5. Above are the reasons of short order of even date.