MOHARRAM vs THE STATE
This matter arises from a bail application filed by the applicant facing trial under Section 9 of the Control of Narcotic Substances Act, 1997, after his bail was refused by the trial court. The core legal question concerns the entitlement of the accused to post-arrest bail where 500 grams of 'Bhang' (hemp) was recovered from his possession, the offense does not carry a prohibitory clause, and the state concedes to bail. The Sindh High Court held that the applicant is entitled to bail, noting that the recovered substance is not specifically mentioned as a narcotic substance in the relevant Act, the trial has not yet commenced, and the offense is not punishable with death, imprisonment for life, or 10 years. The court laid down the principle that where an offense does not fall within the prohibitory clause and the accused is no longer required for investigation, bail should ordinarily be granted, following established precedents.
- Is an accused entitled to post-arrest bail when the recovered substance is not specifically classified as a narcotic under the governing statute?
- Whether bail should be granted when the alleged offense does not fall within the prohibitory clause carrying a sentence of death, imprisonment for life, or 10 years?
- What is the effect of the State's concession on a bail application before the High Court?
- Section 9, Control of Narcotic Substances Act, 1997
- Section 55, Code of Criminal Procedure 1898
- Prohibition (Enforcement of Hadd) Order, 1979
ORDER
1. ' MUHAMMAD ROSHAN ESSANI, J.---The facts leading to the present application for bail are that applicant is facing trial before the learned Special Judge, Control of Narcotic Substances, Badin under section 9 of the Control of Narcotic Substances Act, 1997. It arose out of F.I.R. No, 82 of 1999 of Police Station Talhar, District Badin.
2. ' The brief facts of the prosecution case as disclosed in the F.I.R. Lodged by S.H.O. Ghulam Hussain Kirio at Police Station Talhar on 16-11-1999 are that he was on patrol duty in Talhar Town when he arrested the applicant under section 55, Cr.P.C. From Ward No,
1. Talhar Town. On his personal search 'Bhang' (hemp) weighing 500 grams was recovered in presence of Mashirs Ahmed alias Amar and A.S.-I. Azizullah under Mashirnama. After usual investigation, the applicant was sent up, to stand trial.
3. ' The applicant applied for bail before the trial Court but it was declined by impugned order, dated 16-12-1999.
4. ' We have heard Mr. Ghalib Hussain Ali Mir, learned counsel for the applicant and Mr. Mukhtar Ahmed Khanzada, learned counsel for the State. The latter conceded to the grant of bail.
5. The perusal of record shows that 500 grams of 'Bhang' (hemp) was recovered from the possession of applicant. The substance recovered has been specifically mentioned as Narcotics Substance in the Prohibition (Enforcement of Hadd) Order, 1979 whereas the same has not been specifically mentioned as such in the Anti-Narcotics Act, 1997. The applicant is no more required for the purpose of investigation. The impugned order shows that the case has not yet commenced before the trial Court. The offence alleged is not 'punishable with death, imprisonment for life or 10 years.
6. Keeping in view the D.B. Decision of this Court in case of Husn Din and another v. The State reported in PLD 1998 Karachi 187 and the dicta of Hon'ble Supreme Court laid down in the case of Tariq Bashir and others v. The State PLD 1995 SC 34, we are of the considered view that the applicant is entitled to bail.
7. Consequently, the applicant is granted bail on his furnishing security in the sum of Rs,25,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.
8. ' By our short order, dated 9-2-2000 bail was granted to the applicant and above are the detailed reasons for the same.