2013 Y L R 1241
[Sindh]
Before Naimatullah Phulpoto, J
ASIF ALI---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.S-432 of 2012, decided on 5th
November, 2012.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.
9(b) & 9(c)---Possession of
narcotic---Bail, grant of---Border line case---Probability of false
implication---Delay in sending samples for examination---Effect---Police
allegedly apprehended accused while on patrol duty and found him in possession
of 1250 grams of charas---During investigation 1250 grams of charas was sent to
chemical examiner for report but chemical examiner received only 1200
grams---Such discrepancy of 50 grams had not been explained by the prosecution---Prima
facie, it was yet to be determined at trial, whether offence fell under S. 9(b)
or 9(c) of Control of Narcotic Substances Act, 1997---Present case was a
border-line case---All prosecution witnesses were police officials, thus there
was no question of accused tampering with the evidence---Contraband material
was sent to the office of chemical examiner six days after registration of the
case---Constitutional petition had also been filed against police officials by
a relative of the accused---False implication of accused could not be ruled
out---Accused was admitted to bail, in circumstances.
Ibrar v. State 2008
PCr.LJ 1449 and Nazam Hussain v. State 1998 PCr.LJ 164 ref.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.
51---Narcotics offences---Grant of bail---Scope---Despite the bar contained in
section 51 of Control of Narcotic Substances Act, 1997, Court could grant bail
in a case, which it found fit, after taking into consideration the overall
facts and circumstances of the case.
Jai Jai Veshno Mange Ram
for Applicant.
Ali Raza Pathan for
Respondent.
ORDER
NAIMATULLAH PHULPOTO,
J.---Applicant/accused Asif Ali
Lolai seeks bail
in Crime No. 49 of 2012 registered
at Police Station, Dakhan, Larkana against the accused on 3-7-2012 under
section 9(c) of Control of Narcotic Substances Act, 1997.
2. Brief facts
of the prosecution
case as disclosed in the F.I.R are that on 3-7-2012 SIP/S.H.O. Imdad Ali Shar left
Police Station along with his subordinate staff for patrolling at 1400 hours.
The police party reached at link road leading to village Dari Jakhri towards
Ali Hassan Kakepoto where saw three persons on road. Accused persons while
seeing the police mobile tried to run away but police encircled and caught hold
and enquired their names to which one person disclosed his name Asif Ali son of
Manzoor Ali by caste Lolai. S.H.O. finding the accused in suspicious manner
conducted his personal search in presence of mashirs PCs Ali Nawaz and Madad
Ali, from the left fold of his shalwar one plastic bag was recovered. It
contained charas 1250 grams. From the side pocket of the shirt of accused cash
of Rs.100 was recovered. Another accused disclosed his name Naseeruddin alias
Amb son of Tabib Lolai. From the left fold of his shalwar plastic bag was
recovered, it contained two pieces of charas weighing 1250 grams and cash of
Rs.70. On enquiry, third accused disclosed his name Ghulam Shabir son of Tabib
Lolai. From right side of fold of shalwar of accused one plastic bag was
recovered. It contained two pieces of charas weighing 1200 grams and cash of
Rs.150. Charas recovered from the possession of present accused was sealed at
the spot. Thereafter accused and property were brought at Police Station where
separate F.I.Rs. against all the three accused under section 9(c) of Control of
Narcotic Substances Act, 1997, were registered.
3. During investigation
charas 1250 grams was sent to Chemical Examiner for report but Chemical
Examiner received 1200 grams charas. Positive report was received. After usual
investigation challan was submitted against the accused. Bail application was
moved on behalf of present applicant before the learned Sessions Judge/Special
Judge, for CNS, Shikarpur, the same was
rejected vide order
dated 4-9-2012.
4. Mr. Jai Jai Veshno, Mange
Ram, Advocate for the applicant/accused contended that prosecution story is
highly unnatural and unbelievable, 1250 grams charras have been foisted upon
the accused. It is the border line case, all the P.Ws. are police officials,
there is no question of tampering with the evidence, there was delay of
six days in
sending the charras
to Chemical Examiner. There is discrepancy of 50 grams charras sent to
Chemical Examiner. Lastly
he argued that a
relative of accused Asif Ali had filed
constitutional petition against police. In support of contentions he has relied
on the case of Ibrar v. State 2008 PCr.LJ 1449 and Nazam Hussain v. State 1998
PCr.LJ 164.
5. Mr. Ali Raza Pathan,
learned State counsel argued that 1250 grams charas have been recovered from
the possession of the accused, report of the Chemical Examiner is positive, the
alleged offence falls within the prohibitory clause of section 497, Cr.P.C. He
has seriously opposed the application.
6. I am inclined to grant
bail to the applicant Asif Ali for the reasons that according to the
prosecution case 1250 grams of charras were recovered from the possession of
the accused but 1200 grams were sent to the Chemical Examiner for analysis.
Discrepancy of 50 grams has not been explained by prosecution. Prima facie, yet
it is to be determined at trial whether offence falls under section 9(b) or
9(c) of C.N.S. Act, 1997. This is a border line case. All the P.Ws. are police
officials, there is no
question of tampering
with the evidence. The case was
registered on 3-7-2012 while the
contraband material reached in the office of Chemical Examiner Sukkur at Rohri
on 9-7-2012 i.e. delay of six days which is not explained by the prosecution.
One Inayatullah, the relative of applicant had also filed Constitution Petition
No.783 of 2012 before this Court against police. It is argued that police
lodged this case against the applicant to take revenge. In these circumstances,
false implication of the applicant/accused cannot be ruled out. Despite the bar
contained in section 51 of Control of Narcotic Substances Act, 1997, Court can
grant bail in a case which it finds fit after taking into consideration the
over all facts and circumstances of case. For the above stated reasons this is
a fit case for grant of bail to accused.
7. By short order today
(5-11-2012), concession of bail was granted to the applicant/accused subject to
his furnishing surety in the sum of Rs.100,000 with P.R bond in the like amount
to the satisfaction of the trial Court, these are the reasons for the same.
Needless to say
that the observations made hereinabove are tentative in nature and the trial
Court shall not be influenced at the time of passing final judgment.
MWA/A-144/K Bail
granted.
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