2008 PLP 291 (MLD)

Petitioner was refused post-arrest bail by the learned Special Judge, Control of Narcotic Substances on 3-7-2007 in case against him vide F.I.R. No.8, dated 10-4-2007, under section 9-C and 15 of Control of Narcotic Substances Act, 1997, registered with Police Station ANF, Faisalabad. He, thereafter, filed instant petition, for the same relief.

2. Charge against the petitioner is that he while travelling in a Motorcar No. LZZ/1898 was intercepted by the police and 200 bottles of Concentrated Opium Liquid each weighing 100 grams; 1500 tablets containing Morphine along with 2800 injections of Buprenorphine were recovered. Petitioner could not produce licence to possess psychotropic substance, leading to seizure of the recovered drugs and registration of the case. Samples of the recovered Concentrated Opium Liquid, tablets and the injunctions were sent to the Chemical Examiner. Petitioner was arrested and after remaining on physical remand was remitted to judicial lock-up. Since it was mentioned in the F.I.R. itself that case against the petitioner was being registered on account of non-production of licence to possess the recovered Drugs, this Court admitted the petitioner to interim post-arrest bail, as he produced the licence to keep the drugs recovered, which has now been fixed for confirmation.

3. We have heard the learned counsel for the parties and have examined the police record. Undisputedly, petitioner is doing business of selling the Medicines/drugs in the name of style of "Latif Medicos Faisalabad" under Licenses Nos. 9, 10, 11 and 17 issued by the competent authority under the rules framed by virtue of section 44 of the Drugs Act, 1976. As both the Drugs namely Buprenorphine and Morphine are scheduled Drugs having been mentioned in schedule "B" attached to the above referred Rules, cannot be kept without valid licence. Petitioner has produced his license in Form No.10 valid up to Ist of March, 2008 to sell; stock and exhibit for sale/distribute drugs specified in the above schedule, by way of wholesale, subject to the conditions mentioned therein. In this manner, petitioner could sell/stock/distribute both the above mentioned drugs, under his licence.

4. The Chemical Examiner in his report-dated 24-4-2007 has given his result of examination of injections, tables and Opium Liquid, in the following manner:-- "Packet, (1) contains Buprenorphine injunctions with active ingredients Buprenorphine HCL 0.3 mg/ml. (Point three milligram per milliliter). Packet (2) contains Burprenorphine talbes with active ingredients Buprenorphine HCl 02 mg/tablets (Points two milligram per tablet). Packet (3&4) Opium Alkaloids detected in syrup with the active ingredient Morphine 0.28 mg/100 ml. (Point twenty eight milligrams per one hundred milliters)"

5. Tentatively, Buprenorphine being a scheduled drug could be kept by the petitioner in the premises mentioned in his licence and whether he being its distributor could transport it, makes his case of further inquiry. As regards Opium Alkaloids detected in the Syrup recovered from the petitioner was reported to contain active ingredients of Morphine 0.28 mg/100ml from one bottle and if it is multiply by 200, the quantity of the bottles recovered, it will come to only 5.6 mg. Making the quantity of Opium much less than 100 grams, punishable under section 9-A, C.N.S.A. 1997 with imprisonment of 2 years. Even otherwise petitioner has been licensed to keep/sell Morphine, as noted above. Stance of the learned Legal Advisor for ANF that licence of petitioner has already been cancelled hence he is not entitled to bail, has no legal substance because this cancellation was done on 18-10-2007; much after the occurrence. On the day of recovery, licence of the petitioner was intact. Petitioner while on physical remand did not lead to any further recovery of the Drugs and has already suffered detention of about six months. Challan of the case though has been taken cognizance by the trial Court but no prosecution witness is reported to have been examined so far, diminishing chances of its conclusion in the near future. Person of the petitioner is no more needed for investigation purposes and his further detention would not advance prosecution case, any more. In absence of any allegation of abscondence or tampering with prosecution evidence by the petitioner, bail is not to be withheld as of punishment especially when the offences charged are doubtfully covered by prohibitory clause of section 497, Cr.P.C. Petitioner will face the sentence if ultimately convicted by the trial Court.

6. For the reasons noted above, petitioner has made out a case for confirmation of his interim post-arrest bail granted by this Court on 2-10-2007. Instant petition is accordingly allowed and bail already granted to the petitioner is confirmed. H.B.T. /Z-57/L Bail granted.