JAWAD Versus STATE

ORDER

1. The applicant is involved in a case registered as Crime No.308/93 with Police Station Ferozabad under Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979. The allegation against the present applicant is that 25 packets of heroin weighing 50 grams were recovered from him which contained the heroin powder. The police after usual investigation put up the challan. Bail application was moved before the trial Court, which was rejected, hence this bail application.

2. I have heard Mr. M. Ilyas Khan, the learned counsel for the applicant. He has submitted that the applicant has been falsely involved in the present case and no independent Mashir of the locality has been incorporated in the investigation as the arrest is shown to have been made at about 10-00 p.m. in P.E.C.H.S. near Jheel Park and Silver Spoon Restaurant, which, at that lime is usually a busy place and a number of diners come and go out of the Restaurant and also that it is a commercial area. Thus, violation of section 103, Cr.P.C. has been committed. He has further submitted that the Mashirnama of recovery or the F.I.R. do not show that the recovered heroin was weighed at the spot. Mr. M. Sarwar Khan, the learned Assistant Advocate-General appearing for State has opposed the bail application on the ground that the report of the Chemical Analyser shows that all the 25 packets contained heroin of commercial grade and, therefore, this is a clear case which falls under Article 4 of the abovesaid Order.

3. I have considered the above submissions of the learned counsel. It goes without saying that the locality from whom the applicant is shown to have been arrested is a commercial area having a number of eating places A and at 10-00 p.m. in the night in the month of August, there would be a number of diners available there and so also the other people around but it has not been shown as to why the raiding party did not take any of the independent persons there to act as Mashir. No doubt police officials can be treated as trustworthy witnesses but it is settled law1hat prior to taking the police officials 8 as witnesses the prosecution ought to have shown as to what were the reasons that no private Mashir was incorporated in the investigation. The other ground taken by the learned counsel with regard to the non-weighment of the heroin at the spot also has force. In these circumstances, I admit the applicant to bail. He shall be released on furnishing one surety in the sum of Rs.50,000 (Rupees fifty thousand) and P.R. bond in the like amount to the satisfaction of the trial Court.

4. N.H.Q./J-167/K Bail allowed