SHAH NAWAZ THAHEEM vs THE STATE
The applicant Shah Nawaz sought post-arrest bail facing trial under section 9(b) of the Control of Narcotic Substances Act, 1997, for the alleged recovery of 400 grams of charas. The core legal question was whether bail should be granted when the alleged offense falls outside the prohibitory clause carrying a maximum punishment of seven years. The Sindh High Court held that the case did not fall within the prohibitory clause and that further detention during trial was unwarranted. The Court laid down the principle that grant of bail in cases covered by the non-prohibitory clause is a rule while refusal is an exception, and consequently admitted the applicant to bail subject to furnishing security.
- Whether post-arrest bail should be granted when the offense under the Control of Narcotic Substances Act carries a maximum punishment of seven years?
- Does an offense carrying a maximum punishment of seven years fall within the prohibitory clause?
- Is the grant of bail in cases covered by the non-prohibitory clause considered a rule and refusal an exception?
- Section 9(b), Control of Narcotic Substances Act 1997
ORDER
1. ' The applicant Shah Nawaz is facing his trial for the offence under section 9(b) Control of Narcotic Substances Act, before the Special Judge under CNS Act, Dadu on alleged recovery of 400 grams of Charas on 17-4-2002 at 1430 hours near Punj-More Dita within the jurisdiction of Police Station Dadu.
2. ' The bail application moved on behalf of the applicant was dismissed by the Trial Court by order dated 31-8-2002, hence the present application for bail pending trial.
3. ' We have heard the learned counsel for the applicant and learned counsel for the State. The latter has opposed the grant of bail on the ground that 400 grams of Charas was secured from the possession of applicant. The report of Chemical Analyeer is in positive.
4. ' Learned counsel for the applicant has contended before us that maximum punishment is seven years for the offence under section 9(b) of the Act. Therefore, the case does not fall within the prohibitory clause, to support his contention, he referred the case of Gul Muhammad v. The State (2000 PCr.LJ 551) where in the applicant from whose possession Charas weighing 530 grams was recovered, was granted bail by the Division Bench of this Court, on the analogy of Tariq Bashir v.
5. The State (PLD 1995 Supreme Court 34) that grant of bail in cases covered by non-prohibitory clause is a rule whereas refusal is an exception.
6. ' We have considered the contention of learned counsel. The Charas weighing 400 grams was secured Maximum punishment for the alleged offence is seven years under section 9(b). Thereforg, we are of the view that the detention of the applicant during the trial, in these circumstances, is not warranted, as such we grant bail to the applicant subject to his furnishing security in the sum of Rs,50,000 (Rupees Fifty Thousands) with P.R. Bound in the like amount to the satisfaction of trial Court.