2020 PLP 160 (YLRN)

ABDUL MOBEEN LAKHO, J.--Being aggrieved and dissatisfied by the impugned order dated 01.02.2020 passed by the learned Special Court-II, (C.N.S.) Karachi, in case being crime No.50/2019, under Section 6/9(c) of the CNS ACT, 1997, registered at Police Station ANF, Clifton, Karachi, whereby the post arrest bail of the present applicant/accused was dismissed, the applicant/ accused has approached this Court seeking bail.

2. That the facts of the prosecution case in brief are that on 17.07.2019 at about 0315 hours from near Daewoo Bus Terminal, Super Highway, Sohrab Goth, Karachi. Complainant S.I. Muhammad Ahsan of Police Station ANF, Clifton, Karachi along with other ANF officials arrested the accused along with co-accused persons namely Syed Fakharuddin and Syed Hanif Shah and recovered from possession of present accused who was sitting on the driving seat of the said car bearing registration No.AZS-270, 3.5 Kgs Ice Crystal concealed inside the driving side door, whereas from accused Syed Fakhruddin sitting on rear seat recovered 3 Kgs of Ice Crystal and from accused Syed Hanif Shah sitting on the front seat of the said car recovered Ice Crystal weighing 03 Kgs concealed inside the front side door. After observing required formalities at the spot, the arrested accused and recovered contraband along with car brought at P.S. where FIR was lodged against them.

3. Learned counsel for the applicant/accused contended that the applicant/accused is innocent and has falsely been implicated in this case with mala fide intention and has committed no offence; that recovery from the possession of applicant/accused, which is foisted upon the applicant/accused by the prosecution; that the Complainant as well as I.O. of the instant crime is one person namely SI Muhammad Ahsan which is itself vitiate the process of justice where the Apex Court of the country under their guidelines directed "no person should be judge by his own cause". Thus, there is no probability to temper with the prosecution witness, as the investigation of the instant crime has been concluded and the applicant/accused is no more required by the prosecution and the case of the applicant/accused is one of the further inquiry. There is unnatural difference between the time of occurrence of offence and writing of Mushirnama of arrest and recovery, hence creating doubts in prosecution story and according to the guided principle of Hon'ble Apex Court of the country even a single doubt at bail stage shall be extended to the accused. The accused is ready and willing to furnish solvent surety to the satisfaction of this Court, hence prayed for grant of bail. He relied upon 2014 YLR 383, 1995 PCr.LJ 1375, 1996 PCr.LJ 347 and 1996 PCr.LJ 1437.

4. Learned Special Prosecutor for A.N.F flatly opposed for grant of bail to the present applicant/accused on the ground that 3.5 kg of Ice Crystal recovered from direction possession of the accused and whereas 6.500 grams Ice Crystal recovered from his two other companions and there is no enmity between the accused and ANF officials.

5. After hearing the arguments of both the parties and perused the material available on record. It reveals that the applicants were arrested on spot with a huge quantity of Ice Crystal weighing 9500 grams which was recovered from the vehicle used by the applicant. A huge quantity of nearly 10 Kgs of Ice Crystal cannot easily be foisted upon the accused especially when there seems no delay in lodging of the FIR. The recovery of Ice Crystal from the possession of the accused brings the case of the present accused/applicant within the meaning of subsection (1) of section 497, Cr.P.C. The Bail Application bearing No. 146 of 2019 of the co-accused was dismissed on 29.10.2019 with the direction to the trial Court to conclude the trial within 02 months.

6. The Apex Court in the case of The State v. Javed Khan (2010 SCMR 1989) has made the following observations in a narcotic case:-- "S. 497(5)

Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) and 51(1)

Recovery of narcotic substances

Bail, cancellation of

Death sentence

Narcotic substance weighing 5-1/2 kilograms was recovered from accused who was granted bail by High Court

Validity

Case of accused did not fall within prohibitory clause of S.497, Cr.P.C., as the offence was covered by section 9(c) of Control of Narcotic Substances Act, 1997, providing for various sentences, which not only fell within prohibitory clause of S.497, Cr.P.C. but also attracted the bar contained in section 51(1) of Control of Narcotic Substances Act, 1997, which was specifically made applicable to those offences which provided for punishment of death sentence

Approach of High Court releasing accused on bail was arbitrary, without application of mind and contrary to settled principles of law thus unsustainable

Supreme Court converted petition for leave to appeal into appeal and order admitting accused on bail was set aside and bail application before High Court was dismissed."

7. Similar view has been taken by this Court 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:- "S. 497

Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 14, 15, 25 Ex.29

Possessing, trafficking of narcotics, and aiding, abetting and associating in narcotic offences

Bail, refusal of-Prosecution witnesses, had no enmity whatsoever, with accused to foist such a huge quantity of nine Kilograms of charas upon him

Chemical Examiner's report regarding recovered charas was found positive

Substance recovered from accused, was proved to be charas--Prosecution, in circumstances, had discharged its initial onus while proving that the substance recovered from accused was contraband charas

Sufficient material was available on record, which had shown that accused was found sitting on front seat of the vehicle, and he was found responsible for transportation of narcotics

Defence plea that the narcotic was not recovered from possession of accused, was not true

Alleged offence was heinous one falling within prohibited clause of S.497, Cr.P.C.

Contention that respectable inhabitants of the locality, were not associated as witness or mashir, was not attracted in view of S.25 of the Control of Narcotic Substances Act, 1997

Applicability of S.103, Cr.P.C., had been excluded in the cases of recovery of narcotics

Evidence of Police Officials, was as good as of any other public witness, in absence of any malice or mala fide

Defence plea raised by accused, required deeper appreciation of evidence, which was not admissible at bail stage

Under provisions of section 29 of Control of Narcotic Substances Act, 1997 presumption would be that a person who was found in possession of narcotics, had committed offence, unless otherwise proved

Reasonable grounds, prima facie, did exist to believe the involvement of accused in the offence alleged against him

Bail application having no merits for consideration, was dismissed, in circumstances."

8. The Lahore High Court in the case of Mst. Rafaqat Bibi v. State (2011 MLD 1070) has also held that:-- "S.497

Control of Narcotic Substances Act (XXV of 1997), S. 51

Bail

Section 497, Cr.P.C. not applicable to offences under the Control of Narcotic Substances Act, 1997

Section 51 of the Control of Narcotic Substances Act, 1997, has ousted the implication of S.497, Cr.P.C. from the cases relating to narcotics punishable with death

Said S.51 relates to the Control of Narcotic Substances Act, 1997, which is a special law dealing only with the offences relating to narcotic drugs, psychotropic substances and to control the production, processing and trafficking of the same, whereas Criminal Procedure Code, 1898, is a general law and special law has always precedence over the general law

When the law makers provide 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 as against general principles governing such cases, when accused approaches the Special Court or the High Court."

9. It is settled that for deciding the bail application the court has to observe the tentative assessment and deeper appreciation of evidence is not required and it will not be fair to go into discussion about the merits of the case at this juncture. Keeping the above in mind and the pronouncements of the apex Court. I consequently dismiss the bail application of the present accused.

10. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial while deciding the case of the applicant on merits.

11. These are the reasons of my short order dated 11.03.2020. This Criminal Bail Application stands dismissed in the above terms. SA/M-98/Sindh Bail declined.