ABDUR REHMAN vs THE STATE
The petitioner sought post-arrest bail in a case registered under section 9 of the Control of Narcotic Substances Act, 1997, concerning the recovery of 1200 grams of opium and 6.3 kilograms of charas. The core legal question was whether the accused was entitled to bail given the heavy quantity of contraband and the restrictive provisions of the Control of Narcotic Substances Act, 1997. The Peshawar High Court held that since the offense carried a punishment of death or life imprisonment due to the huge quantity of narcotics exceeding one kilogram, and in view of the bar contained in section 51 of the Act, the petitioner could not be released on bail. The court laid down the principle that bail in narcotic cases involving capital punishment or life imprisonment is prohibited under section 51, and allegations of mala fide and false implication cannot be deeply examined at the bail stage and are instead matters for trial.
- Whether bail can be granted under the Control of Narcotic Substances Act, 1997 when the recovered contraband exceeds one kilogram and is punishable with death or life imprisonment?
- Can the plea of mala fide and false implication be determined at the pre-trial bail stage?
- Whether the restrictive provisions of section 51 of the Control of Narcotic Substances Act, 1997 override the general provisions of bail under the Code of Criminal Procedure, 1898?
- Section 9, Control of Narcotic Substances Act, 1997
- Section 51, Control of Narcotic Substances Act, 1997
- Section 496, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' The petitioner stands charged for having committed an offence punishable under section 9 of the Control of Narcotic Substances Act, 1997, vide F.I.R. No,13, dated 26-5-1999 registered at Police Station, A.N.F., Kohat.
2. When arrested the petitioner approached the Sessions Judge/Judge, Special Court, Kohat (Malik Mujtaba Ahmad) for bail, who vide: his order dated 14-6-1999 refused to release him on bail.
3. The petitioner again approached the said Court for bail, this time on fresh ground, but failed to get the bail.
4. The petitioner has, therefore, approached this Court for the redress of his grievance alleging that he is innocent, falsely charged in the case with mala fide intent and is, therefore, entitled to be enlarged on bail.
5. The learned counsel for the petitioner present and heard. I have also gone through the case file carefully.
6. The punishment provided for the offence mentioned above is either death or life imprisonment as the quantity of the contraband narcotics (1200 grams opium and 6 Kg. 300 grams Charas) recovered from the petitioner exceeds far more than one kilogram. The petitioner cannot be, therefore, released on bail as laid down in section 51 of the said Act. The same is reproduced as under:-- "Section 51. No bail to be granted in respect of certain offences.--- Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (v of 1898) bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death.
(2) In the case of other offence punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount."
7. The contention of the learned counsel for the petitioner that the petitioner is innocent and false implicated in the present case has no substance as he could not show any or enmity between the complainant and the petitioner. Even otherwise mala fide cannot be determined at bail stage. It shall, however, be looked into by the Special Judge at the time of trial.
8. Apart from the above, on a perusal of the available record, it is not at all possible for me to come to the conclusion that reasonable grounds do exist for believing that the petitioner is not connected with the offence charged with. The reasons given by the Special Court for not granting bail to the petitioner are quite convincing and I do not See any justification to interfere with the discretion exercised by him judiciously. Reliance is placed on a case titled Ijaz Ali Khan v. The State 1968 SCM R 1168 wherein it was held by the Honourable Supreme Court:- "The petitioner who is charged with the offence of murder has been refused bail by the Court below from which he now seeks leave to appeal.
' On examining the facts appearing in the order of the learned Judge in the High Court we are inclined to the view that the conditions laid down in section 497, Cr.P.C. For refusing bail to the petitioner were amply fulfilled in this case. The petition is dismissed."
9. This petition for bail is without any substance and is, therefore, dismissed in limine.