2019 PLP 1043 (YLR)

RAJA SAJJAD AHMAD KHAN, J.

Through this petition, the accused-appellant seeks bail after arrest in a case under sections 9(c)/32 CNSA, 2001 which was declined to him by Additional Sessions Judge empowered as Anti-Narcotic, Judge, Sehnsa, vide its order dated 03.12.2018.

2. Brief facts of the case necessary for disposal of the instant petition are that complainant, Iftikhar Ahmad S.I/S.H.O., Police Station Sehnsa, registered FIR, bearing No.177/2018 on 27.09.2018 in offences under sections 9-C/32 of Control of Narcotic Substances Act, 2001, wherein it was alleged that on 25.09.2018 at about 04.45 p.m. during patrolling the police party stopped a motor-cycle without any number which came from Sehnsa and the person boarded on it was apprehended who disclosed his name as Aqeel Maroof son of Mohammad Maroof. During search the Police recovered 1120-grams Charas from a black plastic bag holding by accused appellant. The said accused was apprehended and 50-gram Charas of the seized material was sent for chemical analysis.

3. After arrest, the accused-appellant applied for bail before Sessions Judge empowered as Anti Narcotic Judge CNSA, Kotli on 01.12.2018 which was dismissed vide impugned order dated 03.12.2018, hence, this appeal.

4. Kh. Haq Nawaz Butt, the learned counsel for the accused-appellant argued that appellant has been roped in a false and fabricated case, while he has committed no offence mentioned in the FIR. He further submitted that quantity of alleged Charas mentioned in the FIR falls on borderline of sections 9(b) and 9(c) of CNSA. He further argued that is behind the bars for more than two month while after completion of investigation, challan has been submitted before the competent Court meaning thereby that he is no more required by the Police for the purpose of investigation. He maintained that no independent private witness was associated with the recovery proceedings as such section 103, Cr.P.C. has been violated, which makes the prosecution story highly doubtful and it is settled law that a slightest doubt even at bail stage goes in favour of the accused, which does not come within the ambit of Prohibitory Clause of section 497,Cr.P.C., therefore, detention of petitioner is not warranted by law. The learned counsel also submitted that bail cannot be withheld as punishment as it is a case of further inquiry; therefore, petitioner may be released on bail. In support of his arguments the learned counsel placed reliance on 2011 PCr.LJ 177 and un-reported cases titled Matloob Hussain v. State, Syed Ahmad Shah v. State and Mohammad Ashraf v. The State.

5. Conversely, Sardar Mazhar Iqbal, learned Assistant Advocate General appearing on behalf of State, opposed the submissions made by learned counsel for the appellant-accused. He submitted that the accused-appellant is nominated in the FIR and huge amount of intoxicant 'Charas' 1120 grams was recovered from his possession. The alleged offence 9(c) of CNSA is not only non-bailable but also falls in the prohibitory clause of section 497, Cr.P.C. The learned State counsel emphasized that accused is involved in offence under sections 9(c) and 32 of CNSA, 2001, which postulates punishment of death or life imprisonment, as such he is not entitled to be released on bail, therefore, the appeal may be dismissed.

6. We have heard the learned Advocate for the appellant as well as learned Assistant Advocate General for the State and have gone through the record of the case.

7. As stated earlier the accused-appellant seeks bail after arrest and it is, now, well settled principle of law that at bail stage a tentative assessment of the record has to be taken into consideration and deeper scrutiny of the evidence is neither permissible nor desirable and only it is to be seen as to whether appellant is prima facie connected with the commission of offence or not. This Court while deciding bail application has to look into the FIR, statement recorded under section 161, Cr.P.C. of witnesses and other incriminating material brought by the prosecution including the recoveries etc.

8. It is admitted position on record that only 1120-gram Charas was recovered from the appellant, out of which 50-gram was referred for chemical examination but the report has not been brought on record as yet. The quantity of 1120 grams marginally exceeds the limit of thousand grams, therefore, where recovery of substance did not exceed the limit between 900 grams to 1500 grams, the case being a borderline case between clauses "B" and "C" of Section 9 of Control of Narcotic Substances Act, 1997, further inquiry is determine guilt of the petitioner. It has been held by the Superior Courts that the case being of borderline between clauses (b) and (c) of section 9 of Control of Narcotic Substances Act, 1997 and invariably in all cases applicants have been admitted to bail. My this view finds support from a case reported as "Ayyaz v. State (2011 PCr.LJ 177) wherein it was observed as under:-- "It has been consistent view of the superior Courts that in cases where recovery of substance does not exceed the limit between 900 to 1500 grams it has been held by the Superior Courts that the case being of borderline between clauses (b) and (c) of section 9 Control of Narcotic Substances Act, 1997 and invariably in all cases applicants have been admitted to bail." In the present case, accused appellant is behind the bar for more than two month, after completion of investigation, complete Challan has already been submitted against the accused appellant about commission of offence relating to Narcotic, punishable with death and as the prosecution has not yet collected independent evidence to connect the accused appellant with the guilt, rather the Forensic Science Laboratory report is still awaited, therefore, this fact also makes the case against the appellant is one of further inquiry under the contemplation of subsection (2) of section 497, Cr.P.C. It is relevant to note here that law could not be stretched in favour of the defense or the prosecution for purpose of bail, and it is settled law that bail cannot be withheld as punishment.

13. We are conscious of the bar contained in section 51 of the Act, but still the Court can grant bail in such like cases where the Court is of the view that it is a fit case for bail after taking into consideration the overall facts and circumstances. In view of the above reasons, we are constrained to accept this appeal by setting aside the impugned order dated 03.12.2018 and enlarge the appellant on bail subject to his furnishing bail bond in the sum of Rs.500,000/- with two sureties each and personal bond in the like amount to the satisfaction of Magistrate lst Class, Kotli. If the needful is done he shall be released forthwith provided not required in any other case or offence. SA/1/HC(AJ&K) Appeal accepted.