1999 PLP 2504 (YLR)

SABIHUDDIN AHMED, J.‑‑‑A letter has been received from the applicant through Superintendent, Special Prison, Nara, Hyderabad where the applicant is detained as an under trial prisoner accused of offences under section 9(c) of the Control of Narcotic Substances Act, 1997. It may be mentioned that by order, dated 5‑5‑1999 we had admitted the applicant to bail and directed that he be released "subject to furnishing security in the amount of Rs.100,000 with P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court".

2. Through the aforesaid letter the applicant has prayed that he is a poor man with limited resources and he may be allowed to deposit property documents in place of cash and be released on bail.

3. We were inclined to treat this letter as Miscellaneous Application and dispose of the same with the clarification that there was no specific order requiring the applicant to deposit cash. Mr. Mian Khan Malik, learned Additional Advocate‑General who has waived notice of this application (letter) has, however, raised an objection to the effect that in view of the specific provision of section 51(2) of the Control of Narcotic Substances Act, 1997 bail can only be granted upon furnishing the amount of security in cash or in the form of negotiable instruments. In this context he has attempted to draw a distinction between the expression "security" used in the aforesaid Act and the expression "surety" used in the Code of Criminal Procedure.

4. To appreciate the arguments it may be pertinent to reproduce section 51(2) of the Control of Narcotic Substances Act, 199,7 which reads as under:‑‑ "In the case of other offences punishable under this Act, bail shall not be formally granted unless the Court is of the opinion that it is a fit for grant of bail against the security of a substantial amount."

5. Learned A. A.‑G. has placed before us a note containing definitions of the two expressions security and surety with the object of drawing a distinction between them. In Black's Law Dictionary (IVth Addition) the expression .security has inter alia been defined to mean protection, assurance, indemnification. The term is usually applied to an obligation, pledge, mortgage deposit, lien etc. given by debtor in order to assure payment or performance of his debt by furnishing creditor with a resource to be used in case of failure in principal obligation. Surety, on the other hand, has been defined as one, who at the request of another and for the performance of securing himself to a benefit, becomes responsible for the performance by the latter of some act in favour of a third person or hypothecate property as security thereof. Sardar Muhammad Iqbal Mokal in his 'Words and Phrases' has defined security as "anything that makes money more assured in its payment or more readily recoverable as distinguished from an I.O.U. which is only evidence of debt." The word is not confined to a document, which gives a charge of specific property. On the other hand surety is defined as one that gives security for another or that he is bound to discharge the liability of the principal debtor. Muhammad Ilyas Khan in his 'Legal Terms and Phrases' has described surety in the following words "no other person binds but the obligation is recoverable from the document itself." With respect to surety he has stated that in a criminal case the surety undertakes to produce accused in Court on each date of hearing failing which the amount fixed is forfeited to the State. In civil cases a person binds himself to satisfy the obligations of another person, as the latter failed to satisfy the same.

6. From the above the learned Additional Advocate‑General attempted to deduce the proposition that though bail could be granted and the person released from custody in ordinary criminal case governed by the Cr.P.C. upon another person executing a bond undertaking responsibility for producing the accused in Court, the requirements of Control of Narcotic Substances Act are substantially different. According to him the word "security" used in section 51(2) of the Act indicates that in cases under the aforesaid Act an accused person would not be enlarged on bail merely upon furnishing the bond of another person "surety" undertaking to produce the accused in Court on the date of hearing but the accused could be released on bail only if the security for a substantial amount i.e. recoverable from the document itself so furnished. Learned A. A.‑G. attempted to fortify his contention by arguing that under the special law bail was permissible only in exceptional circumstances and the Legislature did not intend to burden another person for the non‑fulfilment of condition of bail by accused.

7. On the other hand Mr. Pir Bux Bhurgari learned counsel for the applicant argued that the provisions of Cr.P.C. relating to bails were fully applicable to cases even under the aforesaid Act, and unless they were found to be totally repugnant to any specific provision of the special law as provided in section 47 of the Act. He contended that the difference between the expression security and surety urged by the learned A. A.‑G. was artificial and placed reliance upon two recent orders of this Court passed in Cr. B.A. No. 108 of 1999 and Cr. B.A. No.226 of 1999 passed on 21‑4‑1999 by Division Bench of this Court. In the first case the applicant was allowed bail in the sum of Rs.100,000 with P.R. Bond in the like amount and in the second he was directed to be released on furnishing surety in the sum of Rs.200,000 and P.R. Bond in the like amount.

8. We have carefully considered the respective contentions of the learned counsel and have gone through the relevant provision of law. Learned A. A.‑G. appears to be right to the extent that the expression "security" has been used in section 51(2) of the Act. Whereas in the Act the Code provides for release of a person on bail upon furnishing surety. The important question to be considered. however. is whether the principle in the two expressions is so substantial as to lead to a definite conclusion that enlargement of a person accused of offences under the Act is not possible unless cash security or in the form of negotiable instrument is furnished.

9. It may be pertinent to remember, in the first instance that both the statutes contemplate release of an under trial prisoner on bail. The expression "bail'". however, has not been defined either in the Act or in the Code. This expression, however. has acquired a clear meaning in our legal system. In Mian Mahmud Ali Qasuri and another v. The State (PLD 1963 SC 478) it was observed as follows:‑‑ "The connotation of the word 'bail' itself, as understood in law, supports the position adopted by the learned counsel on behalf of the appellants. An accused person is said. at common law, to be admitted to bail, when he is released from the custody of the officers of the Court and is entrusted to the custody of persons known as his sureties, who are bound to produce him to answer, at a specified time and place, the charge against him and who in default of so doing are liable to forfeit such sum as is specified when bail is granted. (Vide Concise Law Dictionary by Osborn, 1927 Edition, page 32)."

10. In Black's Law Dictionary expres sion "bail" has been defined in the following terms:‑‑ "To set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and place certain, which security is called 'bail', because the party arrested or imprisoned is delivered into the hands of those who bind themselves for his forthcoming. "

11. It is evident from the above that requirement of another person standing surety for the accused and committing himself to produce the accused in Court and in the event of failure to do so paying a certain amount to the State is implicit in the concept of bail itself. This is also evident from the proviso to section 496, Cr. P. C. where a Police Officer or a Court can instead of taking bail to discharge the accused only upon his executing a personal bond without surety. Section 499, Cr.P.C. also speaks of bonds executed by the accused person as well as those by his sureties and the forms of such bonds are prescribed in Schedule V. We are, therefore. of the opinion that the expression surety as used in the Criminal Procedure Code is only referable to a person other than the accused himself who makes a commitment in the form of a bond for producing accused in Court on the date of hearing.

12. On the other hand the expression security has also been used in several provisions of the Code itself i.e. section 76 as well as the entire Chapter VIII relating to security proceedings. It is pertinent to mention that though the Code empowers Magistrates to demand security from various persons under the aforesaid Chapter the substantive provisions only enable him to require such persons to execute bonds for keeping peace, good behaviour etc. None of these provisions require a Magistrate to order deposit a sum of money in cash or other forms of negotiable instrument. We, therefore, find it impossible to accede to the argument of the learned Additional Advocate -General that security for the purpose of bail must only mean cash deposit.

13. Indeed for the purpose of determining that the surety is solvent enough to fulfil its obligations under the bond, Courts generally require some form of hypothecation of property by way of security for the purpose of the conditions of the bond. This power appears to stem from section 499, Cr.P.C. of the Code which requires surety to be sufficient. Moreover, as is evident from the definition of the expression surety in the Dictionaries authored by Sardar Muhammad Iqbal Mokal and W.H. Somerset Bell cited by the learned A. A.‑G. means a surety furnishes security for the obligation of the principal. Nevertheless our superior Courts have consistently held that cash security, whether from the accused or surety can never be demanded as a condition for grant of bail and under section 513, Cr.P.C. a Court may permit a person required to execute a bond to deposit cash security in lieu thereof. If authority is needed one may refer to the judgments of the Lahore High Court in Muhammad Yousuf v. The State (1968 MLD 2623) and of this Court Amir Sardar v. The State (1990 PCr.LJ 414). In the first case Muhammad Rafiq Tarar, J. (as his Lordship then was) held that a Court has no power to demand security in the form of a bank guarantee. In the latter late Qaisar Ahmed Hamdi, J found that an order demanding cash security was illegal as there was no provision in the Code to support such order.

14. The Control of Narcotic Substances Act, 1997, it may be observed, does not deviate from the principles of Criminal Procedure Code in respect of execution of bonds or furnishing security for granting bail. In fact all the provisions of the Code have been made applicable explicitly to trials and appeals unless otherwise provided. Section 51 acknowledges the power of Court to grant bail subject to the condition that bail will not be granted to persons accused of offences punishable with death and in other cases it would be granted against the security of a substantial amount. We are, therefore, of the opinion that there is no provision in law requiring the accused/applicant to furnish cash security.

15. An order contemplating security of a substantial amount has already been passed. All that is required to be done is that the Additional Registrar must satisfy himself that the security furnished whether by the applicant or the surety is sufficient to meet the requirement of the bond. With this clarification the application stands disposed of. A copy of this order may be communicated to the applicant through Superintendent Special Prison Nara. Hyderabad. N.H.Q./A‑338/K Order accordingly.