2017 PLP 447 (YLRN)

KHADIM HUSSAIN TUNIO, J.

Applicant Budho seeks bail in case FIR No.6 dated 11-06-2016, Police Station, DIO Excise Mirpurkhas, registered under section 9(c) of the Control of Narcotic Substances Act, 1997, as his, such request has already been turned down by the learned Sessions Judge/Special Court CNS Mirpurkhas vide order dated 06-06-2016.

2. According to the prosecution story as disclosed in the FIR, the complainant/excise inspector while present on patrolling to curb the crime on 11-06-2016, was informed by spy informer that in a white coloured Corolla car Registration No. AFS-946, narcotics would be smuggled. The complainant led Naka-Bandi and when the said motorcar arrived at the spot, it was stopped by the excise police. Present applicant Budho was driving the car whereas, Amir Jan was sitting on rear seat of the driver seat. The search of the motorcar led to the recovery of 50 kilograms of charas from the diggi. The charas was taken in possession along with the car and the accused were arrested. The total 50 packets of charas was sealed into polythene bag, memo was prepared, accused and case property brought at PS, where FIR No. 6 of 2016 was registered against the accused on 11-06-2016.

3. Learned counsel for the applicant contends that the applicant is innocent and there is absolutely no evidence against him which can connect him with the commission of crime; that the applicant has been booked in false case due to political enmity as his wife has contested for the election of councilor on reserved seat; that relatives of the applicant have already been booked in Crime No. 06 of 2016 Police Station Tando Bago for an offence under sections 324 and 120-B, Cr.P.C. read with Section 6/7 ATA and same is pending in the court of Special Judge ATC Hyderabad; that the place of incident is situated in thickly populated area and none from public has been made as mashir; that the applicant is victim of political enmity and falsely involved by the Chairman District Council, Badin; that no contraband whatsoever was recovered from the immediate possession of applicant; that mere recovery of narcotics from a vehicle does not automatically connect the applicant with the alleged recovery, unless the persecution prima-facie succeeds in showing that he had conscious knowledge of it. The learned council sited the 2000 MLD 908 and 2007 MLD 1846.

4. As against that, the learned APG argued that huge quantity of recovery has been recovered from the car in question, wherein the applicant was sitting on the driving seat and prima-facie he is connected with the commission of offence, as the conscious knowledge of the applicant is yet to be determined at trial after recording of the evidence.

5. Arguments of learned counsel for the parties were heard and record of the case was perused.

6. Perusal of the record would reveal that applicant was sitting in the car at the driving seat at the time of his arrest on the spot and huge quantities of narcotics were recovered from the diggi of the same. The whole quantity of recovered narcotics was sent to the laboratory have been analyzed as "charas" by the Chemical Examiner, whose positive report is available on file. The punishment of the offense also falls within the prohibitory clause of section 497, Cr.P.C. Further the CNS Act, 1997, consolidates and amends the law relating to narcotic drugs and psychotropic substances. It controls and prohibits the prosecutions, processing and trafficking of these substances. It also lays progressive punishments for narcotic offences. It provides for the constitution of Special Court having exclusive jurisdiction to try narcotic offences. section 51 of the Act provides that bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating narcotics where the offense is punishable with death. When the quantity of narcotics exceeds one kilogram, the case falls in clause (c) of section 9 of the Act, for which, death penalty or imprisonment of life has been provided. Similarly, the discretion under section 497, Cr.P.C. can also not be exercised with regard to offences punishable with death or imprisonment for life unless the court at the very outset is satisfied that such a charge appears to be false or groundless.

7. The larger interest of public and State demand that in case of huge recovery of narcotics, the discretion under Section 497 of the Code of Criminal Procedure should not be exercised liberally. Generalizations on matters which rest on discretion and an attempt to discover formula of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are like on facts and therefore, courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. However, still the discretion must be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher courts.

8. The apex Court in the case of The State v. Javed Khan (2010 SCMR 1989) has made the following observa-tions in a narcotic case:-- "

4. Having gone through the above provisions of law, we do not feel persuaded to agree that the case of the petitioner will not fall within prohibitory clause of section 497, Cr.P.C. but it shall be covered by section 9(c), providing for various sentences as reproduced above, which not only squarely fall within prohibitory clause of section 497, Cr.P.C. but also attract the bar contained in section 51(1) of the Act of 1997, specifically made applicable to those offences which, inter alia, provide for punishment of death sentence. For ease of reference, the said provision of law is reproduced as under:-- "51(1). Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death." When the law makers have provided some special provision in the statute to bar the jurisdiction of special Court established under the said enactment, due weight is to be given to such special provision of law a against general principles governing such cases, when accused approaches the Special Court or the High Court for grant of bail, as in the instant case.

5. Looking to the admitted facts of the case of respondent and the above discussed clear legal position, the approach of High Court in releasing the respondent on bail on the above referred ground, seems to be arbitrary, without application of mind and, contrary to settled principles of law, thus unsustainable."

9. Similarly, the learned Single Bench of this court has observed in the case of Ayaz Pathan v. State (2013 YLR 2560), wherein the learned Bench while dismissing the bail application in a case registered under section 9(c) of CNSA has made the following observations:-- " In this case prosecution witnesses had no any enmity whatsoever with the applicant to foist such a huge quantity of nine kilograms of Charas upon him. Chemical Examiner report regarding recovered Charas was found positive, it is proved that substance recovered from the applicant was Charas; therefore, the prosecution discharged its initial onus while proving that the substance recovered from him was contraband Charas. There is sufficient material available on record which shows that the applicant was found sitting on front seat of the vehicle and he was found responsible for transportation of narcotics. The defence plea propounded by the applicant that the narcotic was not recovered from his possession is not true. Proper reading of the evidence on the record and the factual concluding drawn by the learned trial Court while deciding the earlier bail application are not shown to suffer from any misreading or non-reading of evidence. The alleged offence is heinous one, falling within prohibitory clause. So far as the contention of the learned counsel for the applicant that respectable inhabitants of the locality did not associate as a witness or mashir is not attracting in view of section 25 of the Control of Narcotic Substances Act, 1997. The applicability of section 103, Cr.P.C. has been excluded in the cases of recovery of narcotics."

10. The case in hand is having similar facts and circumstances. Applicant, as per contents of the FIR, was sitting on the driving seat of the car but nothing is available on file to show as to whether the motorcar was a taxi and the applicant was sitting in it as a driver or otherwise. In absence of such a plea at this stage, it would be presumed that applicant was the colleague of co-accused and charas weighing 50 kilograms was recovered from the car, for which the punishment falls within the prohibitory clause of section 497, Cr.P.C.

11. The Honorable Superior Court observed in numerous case that the deeper appreciation of the record at bail stage cannot be gone into but only it is to be seen as to whether the accused is prima facie connected with the commission of the offence or not. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use is the hall mark of a prudent exercise of judicial discretion. One ought not to make it a question of exercise of authority to grant bail in every narcotic case on the ground of 'further inquiry' and 'conscious knowledge' in disregard to the settled principles of law for grant or refusal of bail.

12. The Honorable Apex Court has observed, while considering the offences punishable under the CNSA to be heinous in nature against the society at large in the judgment in the case titled Socha Gul v. State (Cr.PLA No.15/2015) as under:-- "It is pertinent to mention here that offences punishable under CNS Act of 1997 are by its nature heinous and considered to be the offences against the society at large and it is for this reason that the statute itself has provided a note of caution under section 51 of CNS Act of 1997 before enlarging an accused on bail in the ordinary course. When we refer to the standards set out under section 497, Cr.P.C. for grant of bail to an accused involved in an offence under section 9(c) of CNS Act of 1997, even on that basis we find that an accused charged with an offence, prescribing various punishments, as reproduced above, is not entitled for grant of bail merely on account of the nature or quantity of narcotic substance, being four kilograms. Firstly, as deeper appreciation of evidence is not permissible at bail stage and secondly, in such situation, looking to the peculiar features and nature of the offence, the trial Court may depart from the normal standards prescribed in the case of Ghulam Murtaza (supra) and award him any other legal punishment. Thus, in our opinion, ratio of judgment in the case of Ghularn Murtaza (supra) is not relevant at bail stage."

13. For what has been discussed above, this Court is not inclined to accept the prayer of applicant for grant of bail and the bail application is accordingly dismissed. WA/B-4/Sindh Bail refused.