Mst. SIRAJA and 2 otherss vs THE STATE
This matter concerns a petition for post-arrest bail filed by three female accused persons charged under the Control of Narcotic Substances Act, 1997, following the alleged recovery of contraband (Charas) from their possession during a police search. The core legal questions were whether the procedural irregularities in the search and the personal circumstances of the accused justified the grant of bail. The Peshawar High Court held that the failure of the police to arrange for a female constable to conduct the search constituted a blatant violation of the mandatory procedural requirements under the Code of Criminal Procedure, 1898. Furthermore, the Court questioned the physical feasibility of the recovery as described in the F.I.R. and noted the humanitarian concern regarding the presence of suckling babies in jail. Consequently, the Court granted bail to the petitioners, establishing the principle that procedural non-compliance during search and seizure, combined with mitigating personal circumstances, creates a prima facie case for the grant of bail, even in narcotics cases where the recovered quantity is significant.
- Does the failure of the police to arrange a female constable for the search of female suspects constitute a procedural violation sufficient to grant bail?
- Can the presence of suckling babies with female accused in jail be considered a relevant factor for the grant of bail?
- Does a prima facie case for bail exist when the prosecution's version of the recovery of contraband appears physically implausible?
- Section 9, Control of Narcotic Substances Act 1997
- Section 52, Code of Criminal Procedure 1898
On receipt of information with regard to the trafficking of contraband through the female folk from the tribal territory, GuI Mast Khan, SHO, P.S. Pishtakhara, alongwith police party set up barricade on the main road near Bara Qadeem Check post when in the meantime at 1900 hours, a bus coming from Bara was stopped wherein three ladies were found sitting. All the three ladies were deboarded and were asked about the contraband and they all willingly produced packets of Charas. As per F.I.R, three Kgs. Charas was recovered from the possession of accused lady Siraja, six Kgs from Mst.
Bakht Bibi and three KGs. From Mst. Toheed. Accordingly, all the three lady accused were arrested and a criminal case under section 9 CNSA was registered against them at Police Station Pishtakhara, vide F.I.R No,354, dated 29-7-2003.
2. On non-acceptance of their plea for the concession of bail by the Court below, the accused ladies have tapped the doors of this Court for the same relief.
3. Admittedly, there was prior information about the smuggling of contraband through the female folk, and it was morally incumbent upon the S.H.O. Who was heading the search party to have arranged for a female to search the said ladies but despite that no female constable was arranged and as such the blatant violation of section 52, Cr.P.0 has been made. It also seems preposterous and to be settled at the trial as to how it was possible to tie or wrap six Kgs. Of Charas with the string of Shalwar. The record also reveals that some of the accused ladies are with suckling babies and as such their presence with the accused ladies in the jail is neither reasonable nor desirable from ethical and religious point of view. In view of quantity and nature of contraband recovered from the accused/petitioners coupled with the infirmities pointed out above, I think the petitioners have a prima facie case for the grant of bail.
4. Accordingly, the accused petitioners are admitted to bail provided they furnish bail bonds in the sum of Rs,2 lacs each, with two sureties, each in the like amount, to the satisfaction of the Maga/Judicial Magistrate who shall see that the sureties are local, reliable and men of sufficient means.
Cited by 1 case
- Mst. NOREENA vs THE STATE 2005 YLR 3269