2008 P Cr (PLP)

TARIQ SHAMIM, J.

Through this petition, the petitioner seeks post-arrest bail in case F.I.R. No.385 of 2006 dated 1-6-2006 for offences under sections 6/9 of Control of Narcotic Substances Act, 1997, registered at Police Station Naulakaha, Lahore.

2. Briefly stated the facts of the case are that Syed Nadeem Jafari, Excise Inspector, Lahore along with Excise and police contingent was present at Australia Chowk near Railways Station for keeping a vigil on drug peddlers when on suspicion he apprehended the petitioner on whose personal search a shopper containing 3.5 kilograms of opium mixed powder was recovered, out of which 50 grams was separated as sample for being dispatched to the Chemical Examiner for analysis. The petitioner was arrested at the spot and the aforesaid F.I.R. was lodged against him.

3. The learned counsel for the petitioner contended that the report of the Chemical Examiner was deficient in details and does not connect the petitioner with the narcotic allegedly recovered from his possession; that the alleged recovered 'material does not fall within the definition of the opium as defined under section 2(t) of Control of Narcotic Substances Act, 1997; that the mandatory provisions of section 103, Cr.P.C. were not complied with; that the recovery was planted on the petitioner and that the case of the petitioner falls under subsection (2) .of section 497, Cr.P.C.

4. Mr. A. D. Naseem, Special Public Prosecutor for A.N.F. and the learned Deputy Prosecutor-General for the State have vehemently opposed the petition.

5. We have heard the learned counsel for the parties and gone through the record.

6. There is no denying the fact that 3.5 kilograms opium powder was recovered from the possession of the petitioner on his personal search by the complainant and others officials, out of which 50 grams was separated and sent to the Chemical Examiner for analysis. The report of Chemical Examiner dated 30th of June, 2006 reads as under:

Analysis: Physical appearance Brown Gramuldt powder Mayer's test (for alkaloid) Positive Poppylosin test (for Opium) Positive (Sd.) 21-6-2006 Biochemist (Sd.) Chemical Examiner, Government of the Punjab, Lahore. Opinion: the above powder contains Opium alkaloid. (Sd.) Chemical Examiner Sd: Astt. Chemical Examiner Chief Chemical Examiner No.115/Misc. Dated: 30-6-2006

7. From bare perusal of the report it is evident that the sample sent for analysis tested positive for opium as well as for alkaloid. Keeping in view the report of the Chemical Examiner as well as the quantum of narcotic recovered from the petitioner it can be safely said that the offence attracts the provisions of sections 6/9 of the Control of Narcotic Substances Act, 1997.

8. Insofar as the argument of the learned counsel regarding report of the Chemical Examiner being deficient is concerned, it is pointed out that section 510, Cr.P.C. provides that the provisions of Criminal Procedure Code shall be applicable in respect of trials conducted by the Special Court established under Control of Narcotic Substances Act, 1997. If during the course of trial, the Court comes to a conclusion that the report of the Chemical Examiner is meagre and incomplete, it has ample power and jurisdiction to summon and examine the Expert.

9. Now adverting to the argument advanced by the learned counsel for the petitioner regarding non-compliance with the provisions of section 103, Cr.P.C., suffice it to say that the provisions of section 103, Cr.P.C. have been expressly excluded from applicability in cases of narcotic substances by virtue of section 25 of the said Act. Therefore, non-compliance with the provisions of section 103, Cr.P.C. cannot be considered a valid ground for extending the concession of bail to an accused person. It has been held by the Honourable Supreme Court of Pakistan in the case of Fida Jan v. The State 2001 SCMR 36 that officials witnesses are as good as private witnesses. We are not impressed with other arguments advanced by the learned counsel for the petitioner that narcotic in question has been planted by the complainant and others. By no stretch of imagination can it be assumed that the Excise Inspector/complainant and other officials would go to the extent of planting such a huge quantity of narcotic on the petitioner, particularly when no malice, ill-will or previous enmity has been shown by the petitioner with the said officials. 10 In the instant case, the petitioner has not been able to provide any legal justification for keeping such a huge quantity of narcotic in his possession. Consequently, the bar contained in section 51 of Control of Narcotic Substances Act, 1997 to the grant of bail is attracted with full vigor.

11. For what has been stated above, we are not inclined to extend the concession of post-arrest bail to the petitioner as prima facie there is ample incriminating material available on the record to connect the petitioner with the crime alleged to have been committed by him. Resultantly, this petition being without merit is dismissed. H.B.T./K-52/L Bail refused.