2025 PLP 1955 (MLD)

Ali Baig, C.J.

The petitioner/ accused has filed the instant petition under section 497 Cr.P.C seeking post arrest bail in criminal case bearing FIR No. 01/2025 registered at Police Station ANF Gilgit for offence under section 9, 1(3)(C), 15 CNSA, 1997.

1. The brief facts of the case as narrated in the FIR are that on 20.02.2025 at about 1730 hours, the local police of ANF PS Gilgit have recovered 1000 grams charas from the Toyota Permio Car which was driven by the co-accused of the present petitioner/ accused. Resultantly the above mentioned FIR was registered against the petitioner/accused and his co-accused.

2. After registration of the above referred FIR the concerned IO started investigation of the case and after completion of usual investigation got committed the accused/petitioner to judicial custody at Gilgit. The present petitioner had filed an application under section 497 Cr.P.C before the learned trial Court/Special Judge CNSA for grant of post arrest bail. The learned trial court/Special Judge CNSA after hearing arguments on behalf of the parties has dismissed the bail application filed by the present petitioner/accused, vide order dated 26.02.2025 passed in B.A No. 133/2025.

3. Feeling aggrieved and dissatisfied with the impugned order passed by the learned trial Court, the present petitioner/accused has filed the instant bail petition before this Court seeking his enlargement on bail in the above mentioned criminal case.

4. The learned counsel for the petitioner/accused submitted that the police has lodged the above mentioned FIR against an innocent person who has no previous criminal record as such petitioner/ accused has falsely been implicated in the instant case by the police. The learned counsel for the petitioner further submitted that the alleged recovery has been effected on a busy road but there is no private witness of the occurrence which makes the case of prosecution doubtful and calls for further inquiry. The learned counsel for the petitioner/ accused further submitted that prosecution has failed to submit challan of the case before the trial Court within the mandatory period of 14 days. The learned counsel for the petitioner/ accused further submitted that the petitioner/accused had no knowledge of the contraband in the vehicle as he was neither driver nor owner of the car rather he was travelling in the car. The learned counsel for the petitioner/accused lastly submitted that it is a border line case, therefore, the accused/petitioner is entitled for concession of bail. The learned counsel for the petitioner/accused has relied upon judgments of superior Courts reported as 2023 YLR 171, 2024 MLD 1407; 2024, YLR 1487 and 2024 YLR 2467.

6. On the other hand the learned Special Prosecutor of ANF vehemently opposed the contentions raised by the learned counsel for the petitioner/ accused and submitted that the FIR has been promptly lodged, the accused /petitioner has directly been nominated in the FIR and a huge quantity of contraband Charas has been recovered from the possession of petitioner / accused. The learned Special Prosecutor further submitted that the petitioner/ accused has been caught red handed during transportation of the charas by the police, hence, he is not entitled for concession of bail. The learned Special Prosecutor further submitted that the offence is heinous one, against the society and falls within the ambit of prohibitory clause of 497 Cr.P.C, therefore, the accused/ petitioner is not entitled for any relief. The learned DAG further submitted that the judgment/order passed by the learned trial Court is well reasoned and result of correct appreciation of law and material available on record. The learned Special Prosecutor lastly submitted that the instant bail petition may be dismissed to meet the ends of justice.

7. We have heard the learned counsel for the parties at length and also gone through the available record of the case with their able assistance.

8. It appears from the record that the petitioner/ accused was travelling in a vehicle which was driven by co-accused of the present petitioner/ accused namely Nasir Nagin by getting lift from him. The contraband narcotic/ Charas was recovered from beneath of driving seat and no contraband narcotic has been shown recovered from direct possession of the petitioner/accused. The recovery of Charas has been shown from secret cavities /beneath driving seat of vehicle/car which was driven by the above named co-accused of the present petitioner. The only circumstance/allegation against the petitioner is that he was travelling in the aforesaid vehicle driven by the driver/co-accused Nasir Nagin. In absence of any clear evidence on record prima-facie establish conscious knowledge of the petitioner to the extent of concealed narcotic/ Chars or his nexus with the driver/co-accused, his participation in the commission of offence requires further inquiry, hence, petitioner is entitled for concession of bail. Moreover, FIR was lodged on 20-02-2025 but challan against the accused/petitioner has not been submitted in the Court despite lapses of more than 22 days of lodging of FIR.

9. It is admitted that no independent private witness has witnessed the occurrence/recovery rather case of the prosecution is based upon the evidence of the police officials, therefore, their evidence is required to be minutely scrutinized at the time of trial, whether offence allegedly committed by the petitioner/accused in a manner as narrated by the complainant or otherwise. Furthermore, there is nothing in record to show that the petitioner/ accused is previously convicted or has been arrested in the case of similar nature in past.

10. For the foregoing reasons and circumstances this bail petition is hereby accepted and the petitioner/accused released on bail subject to his furnishing bail bonds in the sum of Rs. 200,000/- (two lacs) with two sureties each in the like amount to the satisfaction of learned Trial Court. File. JK/5/GB Bail granted.