MUMTAZ Versus THE STATE
This matter comes before the High Court through a bail application filed by the applicant Mumtaz, who was arrested alongside others following police patrolling and spy information regarding the alleged sale of narcotics in a graveyard. The applicant was allegedly found in possession of 115 grams of Charas and sent up to face trial under section 9(b) of the Control of Narcotic Substances Act, 1997, after his earlier bail application was rejected by the Sessions Judge, Dadu. The core legal question concerns whether the applicant is entitled to post-arrest bail considering the quantity of the recovered substance and the circumstances of the arrest, including the lack of independent mashirs. The court held that the applicant is entitled to bail, noting that the offense does not fall within the prohibitory clause and that the State Counsel conceded to the grant of bail. The key principle laid down is that post-arrest bail may be granted when an offense does not fall within the prohibitory clause and the facts make out a case for further inquiry.
- Whether the applicant is entitled to post-arrest bail when the offense does not fall within the prohibitory clause?
- Does the absence of independent mashirs for recovery proceedings make the case one of further inquiry for the purpose of bail?
- Whether concession of bail by the State Counsel is a relevant factor in granting bail?
- Section 9-A, Control of Narcotic Substances Act, 1997
- Section 9(b), Control of Narcotic Substances Act, 1997
ORDER
1. Allegation against the present applicant is that he, alongwith 5 others was found sitting in the graveyard of Mohsin Shah near Railway Line when police reached there after receiving spy information while patrolling in the city that some persons were selling Charas at the said pointed place. It is alleged that out of the six (6) persons one person namely Ashiq son' of not known made his escape good whereas applicant and 4 others were arrested with the help of police staff. As a result of personal search 115 grams of Charas and four currency notes of Rs.10 each were recovered from his possession. The material was sealed at the spot and 10 grams out of the same was separated for being referred to the Chemical Analyzer. So far other 4 persons are concerned, it is stated that less than .100 grams Charas was recovered from each of them, hence they were sent up to face their trial under section 9-A of CNS Act, 1997 in the Court of Judicial Magistrate where according to Mr. Shafi Muhammad Memon they are facing their trial whereas present applicant has been sent up under section 9(b) and facing trial before Special Judge (CNS), Dadu. His bail application has been rejected by the learned Sessions Judge, Dadu on 18-5-2004.
2. Mr. Shafi Muhammad Memon learned counsel for the applicant has mainly argued that the offence does not fall within(?) the prohibitory clause as it is punishable with a maximum imprisonment upto 7 years. He has further argued that despite receiving spy information well in advance in the city, no one was either associated or tried to be associated as a Mashir, so that the arrest and recovery proceedings could become authenticated. Learned counsel has further argued that in fact the applicant has been involved in this case due to some enmity with local police and that it is a case of further inquiry.
3. On the other hand, Mr. Habib Ahmed learned State Counsel keeping in view all the facts and circumstances of the case has rightly conceded to the grant of bail.
4. We feel inclined to order for release of the applicant on bail provided he furnishes one solvent surety in the sum of Rs.1,00,000 and P.R. bond in the like amount to the satisfaction of the learned trial Court.
5. H.B.T./M-116/K Bail granted.