JUMMA KHAN and 2 others vs THE STATE

' Through the instant petition, the petitioners have sought their release on bail in case F.I.R. No,248, dated 8-8-2001 of Police Station Lakki Marwat registered under Articles 3 and 4 of Prohibition Order, 1979 read with section 9 of the Control of Narcotic Substances Act. Their efforts for such purpose have been proved abortive at the lower forum, vide order, dated 16-8-2001 passed by the learned Sessions Judge, Lakki Marwat.

2. Learned counsel for the petitioners has submitted that the alleged recovery was a planted one besides made from the joint house of the three brothers. Petitioner No,2 is a school going boy aged about seventeen years and, therefore, the petitioners are entitled to the concession of bail.

3. Learned counsel for the State while opposing the contentions of the counsel for the petitioners has submitted that the accused/petitioners are involved in a heinous offence injurious to the society and the offence with which they are charged falls under the prohibitory clause of section 497, Cr.P.C. And, as such, are not entitled to the discretionary relief of bail.

3. I have heard learned counsel for the parties and gone through the record carefully.

4. According to the F.I.R., the quantity of narcotics substance recovered from the house of the petitioners was fifty grams heroin, 1000 grams Charas from one place and 180 grams Charas from another place. Section 9 of C.N.S.A. Speaks that under sub-clause (a) thereof, the punishment is upto two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less. Clause (b) of the said section entails punishment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram and under sub-clause (c) the punishment prescribed is death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotics, drugs psychotropic substance or controlled substance exceed the limits specified in clause (b). Lastly, in the proviso it is provided that if quantity exceeds ten kilograms, the punishment shall not be less than imprisonment for life.

5. The case of the petitioners falls between the line under clauses (b) and (c) aforesaid but while disposing of bail application, lesser punishment prescribed for the offence will be taken into consideration in case there is no likelihood of abscondence of the accused and there is no apprehension of the accused tampering with the record. The prosecution has pointed out nothing such while arguing the case. Therefore, without adjudicating upon merits of the case, this application is allowed and the petitioners are directed to be released on bail subject to their furnishing bail bond in the sum of Rs, two lacs with two sureties each in the like amount to the satisfaction of Ilaqa/Judicial Magistrate.