2008 PLP 2080 (YLR)

ABDUR RAHMAN FARUQ PIRZADA, J.

The applicant seeks bail in case crime No.182/2007 of Police Station, Naushahro Feroze, for offence under section 9(b) of the Control of Narcotic Substances Act, 1997. F.I.R. was lodged by complainant A.S-I. Shuaib Abbasi at PS, Naushahro Feroze, on 1-10-2007, at 5-30 p.m. Allegedly on 1-10-2007, while the complainant party had gone for patrolling within their jurisdiction, the application was found going on the road towards the river, who was holding a cloth bag. Thereafter, complainant party apprehended the accused at about 4 p.m. along with the cloth bag. On enquiry, he disclosed his name as Jan Muhammad. The cloth bag was secured and in presence of mashirs HC Shakoor and PC Hakim Ali, the cloth bag was opened which was found to contain a plastic bag containing Charas in the shape of small pieces, which were weighed 250 grams. 50 grams of the material was separately sealed for sample. In further search of the accused cash of Rs.400 was also recovered. Learned counsel for the applicant has submitted that the applicant has continuously remained in custody since 1-10-2007, for an offence, which is not covered by the prohibitory clause of section 497, Cr.P.C. He further submitted that the complainant who was A.S-I. was not competent under the law to make the search and arrest the accused, and so also to register the F.I.R, as it was in violation of section 21 of Control of Narcotic Substances Act, 1997. He has relied upon the case law as reported in 2007 YLR 439 and 2004 YLR 1973 (Karachi). Learned Additional Advocate General has conceded to the grant of bail in view of the above cited authorities of law. I have considered the contentions of learned counsel for the applicant and learned Additional Advocate-General. As is evident from the F.I.R., the complainant was an A.S-I. who carried out the search of the applicant recovered the case property and arrested him, whereafter the F.I.R. was lodged by him. As per provisions of section 21 of the Control of Narcotic Substances Act, 1997, it is a pre-requisite that an officer not below the rank of Sub-Inspector of Police or equivalent authorized in this behalf by the Federal Government or the Provincial Government, is competent to take action regarding the alleged offence, as such apparently this mandatory provision of law was violated by the complainant. I have gone through the case law as relied upon by learned counsel for the applicant. In the case of Noor Muhammad v. State reported in 2007 YLR 1973 (Karachi), in the case of recovery of Charas weighing, 11 K.g. when the sample of half K.g was taken out from one shopper weighing 1 K.g. the bail was granted on the ground that no conclusive finding could be recorded from the facts of the case that all the recovered material (11 Kgs.) was contraband narcotics. In view of the given facts and circumstances, I find the case of applicant fit for grant of concession of bail. Accordingly, this application is allowed and the applicant be released subject to his furnishing solvent surety in the sum of Rs. One lac and P.R. bond in the like amount to the satisfaction of the learned trial Court. H.B.T./J-15/K Bail granted.