ASIF ALI Versus State
ORDER
AFTAB AHMED GORAR, J .---Through instant bail application, applicant/accused Asif Ali son of Ghulam Hyder seeks post-arrest bail in Crime No.137/2019 registered at Police Station, Mirpur Mathelo district, Ghotki for offence punishable under sections 269, 270, 273, 337-J, P.P.C.
2. Brief facts of the prosecution case are that on 16.10.2019 at about 1240 hours complainant lodged FIR at Police Station, Mirpur Mathelo stating therein that on the day of incident he along with his subordinate staff, left Police Station in Police Mobile No.SPN-216 with DD entry No.13 at 1120 hours for patrolling in the jurisdiction. During patrolling when they reached at Iqbal Pump where they received information that accused Asif Ali alias Asif Hyder Chachar was publically selling hazardous Pan Parag Gutka openly on his shop situated in Chijjan bypass. On receipt such information complainant party proceeded towards pointed place where they found 150 packets of Panparag, 121 and 200 packets of Panparag Gutka were lying on the table, he disclosed that he is selling Pan Parag Gutka at his shop. Complainant party recovered said intoxicant material, body was searched and also recovered cash amount of Rs.280/- due to non-availability of private mashirs PC Shoukat Ali and PC Raheem Bux act as mashir. On inquiry accused disclosed his name as Asif Ali alias Asif Hyder. Thereafter, recovered property was sealed at spot. Hence, complainant lodged FIR.
3. Learned Counsel for applicant contends that the applicant has falsely been involved in this case by the complainant with mala fide intention and ulterior motives as now a days the tradition to involve the innocent persons in false cases of intoxication of Gutka/Pan Parag is at peak; that all the sections applied in FIR are bailable, however, section 337-J has been inserted later on in charge-sheet which on face of it has misapplied, however, the story as narrated in the FIR does not attract to the aforesaid section; that no consumer is shown to have purchased said 150 packets of Panparag, 121 and 200 packets of Panparag Gutka from the applicant as it can easily be purchased from shop and foist the same upon innocent person; that nothing has been recovered from the possession of applicant/accused but alleged recovery has been foisted upon the accused. He further submits that all the mashirs are Police officials and there is no independent person to act as mashir and place of incident is thickly Populated area. He therefore, prayed for confirmation of bail.
4. Learned Additional Prosecutor General appearing for the State vehemently opposed for confirmation of bail on the ground that huge quantity of Gutka/Pan Parag have been recovered from the possession of applicant which are injurious to health in presence of mashirs. He further contended that as per chemical examiner's report the alleged offence falls under section 5 of Food Laws. He prayed that applicant is not entitled for confirmation of bail.
5. I have given anxious consideration towards the arguments advanced by both the learned Counsel and come to the conclusion that keeping the totality of the circumstances in mind, and on a tentative assessment of the facts as alleged, a case for the grant of bail has been made out as it is vet to be determined at the time of trial after recording evidence whether alleged material viz. 150 packets of Panparag, 121 and 200 packets of Panparag Gutka have been recovered from the sole possession of applicant/accused or it has been foisted upon him applicant by the Police. Furthermore, the prosecution has failed to point out that any poisonous thing or poison be given to any other person which can cause injurious to a human body, hence the prosecution story is totally false and unbelievable. From further perusal of record it appears that product was found to be non-genuine. The learned DPG submits that case of applicant falls under 5 of Food Laws. The section 5 of Food laws read as under;
"No person shall directly or indirectly, himself or by any other person, prepare manufacture, keep or store for sale, sell or, offer to sell any food which unsound, unwholesome injurious to health or unfit for human consumption."
6. The punishment provided under section 5 of aforesaid laws which may extend to seven years and shall not less than one year with fine which does not fall within the prohibitory clause of section 497, Cr.P.C. I am also in agreement with the learned Counsel for applicant that no consumer has been shown to have purchased said intoxicant material i.e. 150 packets of Panparag, 121 and 200 packets of Pan parag Gutka from the applicant however, learned Additional Prosecutor General admitted that alleged recovery being easily available in market and can easily be foisted upon any innocent person by Police. It is also pertinent to mention here that learned Prosecutor could not satisfy the court about the safe custody of intoxication material at Malkhana so also the safe transit. In the case in hand not only the report submitted by the Chemical Examiner was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated samples to the office of the Chemical Examiner had also not been established by the prosecution. The record further reveals that, all the PWs are police officials and no private person has been cited as mashirs as the place of incident is thickly populated area. Nothing was available on record to show that accused was ever involved in similar cases in the past. Investigation in the case was complete therefore, accused was no longer required to Police for further investigation. Incarceration of accused would serve no useful purpose and case against applicant/accused fell within ambit of further inquiry.
7. The Police have failed to establish that applicant is owner of any factory through which the alleged poisonous material manufactures. If the case of possession of 150 packets of Panparag, 121 and 200 packets of Pan parag Gutka then first prosecution has to establish the fact that the drugs/intoxicant material as alleged were secured from the possession of the accused then the court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such intoxicant material. Therefore, it is necessary for the prosecution to establish that the accused has some direct relationship with the intoxicant material or has otherwise dealt with it. If the prosecution proves the detention of article or physical custody of it then the burden of proving that the accused was not knowingly in possession of the article is upon him.
8. In view of above, I am of the considered view that applicant/accused has been able to make out a case for grant of bail. Accordingly, instant bail application is allowed. The applicant/accused Asif Ali is granted post-arrest bail subject to his furnishing solvent surety in the sum of Rs.30,000/- (Rupees Thirty thousand) and PR bond in the like amount to the satisfaction of the trial Court vide my short order dated 22.11.2019 and these are the reasons for the same.
9. Needless to say that observation made hereinabove are tentative in nature and will not prejudice the case of either party at the time of trial.
Bail application stands disposed of.
ADN/A-197/Sindh Bail granted.