2003 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)

S. 497

Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 51

Bail

Contention that fitness of a case for grant of bail was to be determined with reference to the quantity of the narcotic substance recovered from the accused was not impressive

Accused had been caught red-handed while in possession of various quantities of narcotic substances

Reports of Chemical Examiner in respect of the samples of the said narcotics were in positive

No special circumstance could. be pointed out on behalf of the accused to convince the Court that the case was fit for grant them bail

Reasonable grounds, prima facie, existed to believe the involvement of accused in the offences alleged against them-- Bail was declined to accused in, circumstances. Nazar Hussain v. The State 2002 PCr.LJ 440 ref, Ahmad Nawaz Wattoo for Petitioner. Mrs. Tasneem Amin for the State. Through the present consolidated order we propose to decide Criminal Miscellaneous No.565/B of 2003 filed by Saeed Ahmad petitioner, Criminal Miscellaneous No.858/B of 2003, filed by Ali Sher petitioner and Criminal Miscellaneous No. 1070/B of 2003 filed by Naveed Ali petitioner together as all these petitioners have sought post arrest bail in different cases registered against them for offences under the Control of Narcotic Substances Act, 1997 and common questions of law and fact are involved in all these petitions.

2. The allegation against Saeed Ahmad petitioner in Criminal Miscellaneous No.565/B of 2003 is that he was apprehended by a police party while in possession of 200 grams of Charas. The case against Ali Sher petitioner in Criminal Miscellaneous No.858/B of 2003 is that he was caught red-handed by a police party while in possession of Charas weighing 500 grams. The prosecution's case against Naveed Ali petitioner in Criminal Miscellaneous No. 1070/B of 2003 is that he had been apprehended by a police party while in possession of opium weighing 528 grams and Charas weighing 620 grams.

3. In support of these petitions the learned counsel for the petitioners have argued that the petitioners have been falsely implicated in these cases on account of mala fide on the part of the local police; the Police Officers conducting raids in all these cases had themselves effected the alleged recoveries and had also conducted the investigation of these cases which was unfair and unjustified no private witness had been associated with the alleged recoveries despite availability; the offences allegedly committed by the petitioners attracted the provisions of the Prohibition (Enforcement of Hadd) Order, 1979 as well as of the Control of Narcotic Substances Act, 1997 and in a case attracting two penal provisions against an accused person only that penal provision is to 4 considered which has lesser rigours of the law against the accused person; the cases against the petitioners do not attract the prohibitory clause contained in subsection (1) of section 497, Cr. P.C. ; and, therefore, the petitioners are entitled to be admitted to bail. It has further been argued that the quantity of narcotic substances recovered in these cases was quite small and, therefore, the cases in hand are fit cases for bail in view of the provisions of subsection (2) of section 51 of the Control of Narcotic Substances Act, 1997. As against that the learned counsel for the State appearing in all these petitions have opposed these petitions.

4. After hearing the learned counsel for the parties and going through the record of all these cases we have noticed that the petitioners had been apprehended red-handed while in possession. of various quantities of narcotic substances and the reports of the Chemical Examiner regarding the samples of the substances recovered from the petitioners' possession are in the positive in all these cases.' All the above mentioned contentions of the learned counsel for the petitioners have already been considered and exhaustively commented upon by a Division Bench of this Court of which one of us (Asif Saeed Khan Khosa, J.), was a member in the case of Nazar Hussain v. The State 2002 PCr.LJ

440. It had not been held by this Court in the above mentioned judgment that under no circumstance an accused person can be granted bail in a case under the Control of Narcotic Substances Act, 1997 but it had been held that in order to claim bail in such a case the Court has to be satisfied that the case was fit for grant of bail. According to the provisions of sections 51 of the Control of Narcotic Substances Act, 1997 bail cannot be granted to an accused person if the offence committed by him under the Control of Narcotic Substances Act, 1997 is punishable with death and in cases of all other offences punishable under the said Act the Legislature has itself mandated that bail is normally not to be granted unless the Court is of the opinion that it is a fit case for grant of bail. The words "other offences punishable under this Act" used in subsection (2) 01 section 51 of the said Act include even an offence under section 9(a) or the said Act which is attracted to cases of recovery of narcotic substance weighing 100 grams or less and, therefore, the legislative intent is obvious that quantity of the recovered narcotic substance is not to be treated as a yardstick or a criterion for considering whether a particular case .is a fit case for grant of bail or not. In our considered view such fitness is to be gathered from the other circumstances of the case for instance a background of ill-will or bitterness between the accused person and the local police, minority, old age or gender of the accused, illness. doubts regarding merits of the case, unconscionable delay in the- trial or any other peculiarity of the case satisfying the Court that grant of bail would advance the interests of justice. Thus, the contention of the learned counsel for the petitioners that fitness of a case for grant of bail is to. be determined with reference to the quantity of the narcotic substance recovered from the accused person has not impressed us. Despite our repeated queries from the learned counsel for the petitioners in all these cases they, have not been able to point out any special circumstance in these cases so as to convince us that the cases in hand are fit for grant or bail to the petitioners. As already mentioned above all these petitioners had been caught red-handed while in possession of narcotic substances and the reports of the Chemical Examiner in respect of the samples or such recovered substances are in the positive. In the absence of any special circumstance in these cases having been pointed out before us we have little doubt that prima facie reasonable grounds do exist to believe in the petitioners involvement in the offences alleged against them and the cases in hand are not fit for admission of the petitioners to bail at such a stage.

5. For what has been discussed above all these petitions ace hereby dismissed. N.H.Q./S-625/L Bail refused.