1990 P Cr (PLP)

The brief facts leading to the present bail petition are that an F.I.R. No.222/89, dated 12-7-1989, was registered at Police Station `A' Division, Okara under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, against the present petitioner.

2. According to the F.I.R. the complainant, an A.S.I. alongwith police constables was on Gasht near Soda Water Chowk/Chowk Sarwar, when he caught hold of the petitioner on becoming suspicious and on his personal search recovered 12 Purries of one gram each of heroin and that, thereafter one Purri was sent for report to the Chemical Examiner whereas the rest were sealed into a parcel. It is further stated therein that the petitioner wanted to sell the heroin recovered from him.

3. The learned counsel for the petitioner contends for bail on the following grounds:-- (i) That, according to the F.I.R. there arc no witnesses of the alleged recovery of heroin from the petitioner, whereas in accordance with the provisions of section 103, Cr.P.C. the search alleged should have been witnessed by independent witnesses of the locality. (ii) That as only one grain of heroin has been sent to the Chemical Examiner for his report, therefore, even a positive result of the same shall not bring the case of the petitioner within the prohibitory clause of section 497(1), Cr.P.C. (iii) That as the challan of the case, complete or incomplete was not submitted to the Court till the filing of the present bail petition i.e. on 16 10-1989, therefore, the remand and detention of the petitioner was against the provision of law as laid down in section 344, Cr.P.C. (iv) That the petitioner is no longer required by the police and is not a previous convict. To support his contention the learned counsel has relied upon the following authorities:-- (i) Ghulam Sarwar and another v. The State 1984 P Cr. L J 2588, wherein it was held that after the expiry of 15 days, the Magistrate shall require the police to submit complete or incomplete challan and in case, the challan is not submitted, he shall release him on bail with or without surety. (ii) Darshait Singh and others v. The State and others P L D 1957 (W.P.) Kar. 210, wherein it was held that remand under section 344, Cr.P.C. necessitated the presentation of any interim challan by police and that in the absence of the challan, it was further held, that the detention of the petitioner therein was not warranted by any law and it was directed that the petitioner be set at liberty forthwtih. (iii) The State v. Samiullah Khan and others P L D 1959 (W.P.) Kar. 157, wherein the accused was enlarged on bail by the learned Sessions Judge, on the ground that the challan had not been submitted and as such there was no evidence against the accused raising suspicion against them, was not interfered with and it was held that under the said circumstances the accused were entitled to bail. (iv) Mehar Khan v. Yaqub Khan and another, 1981 S C M R 261 wherein it was held that in a case in which neither the complete nor an incomplete challan (as envisaged by Rule 25.26 of the Police Rule., 1934) has been submitted before a Magistrate, he cannot be assumed to have taken cognizance of the offence under clause (b) of subsection (1) of section 190, Cr.P.C. just as he would not be assumed to have taken cognizance of the offence under clause (a) of section 190 of subsection (1), CrY.C. when no private complaint has been lodged before him, and it was further held that the result would be that in such cases the Magistrate would not be empowered to remand the case under section 344(1), Cr.P.C.

4. Therefore, the learned counsel contended for the bail of the petitioner on the ground that as neither the complete nor the incomplete challan had been submitted to trial Court till the filing of the present bail application, the petitioner was entitled to bail in view of the authorities stated above.

5. The learned A.A.-G. on the other hand, opposed the grant of bail and contended that the authorities cited only deal with section 344, Cr.P.C. and were not relevant to the present case. The learned A.A.-G., however, conceded that neither the complete nor incomplete challan had been submitted to the trial Court till the filing of the present bail petition and that the challan has now been submitted on 4-11-1989 to the trial Court.

6. However, the learned A.A.-G. failed to point out as to how it was not relevant as in the same breath he conceded that in the authorities cited above, by the learned counsel for the petitioner, the accused therein were bailed out on this very ground i.e. of the complete or incomplete challan not having beet submitted to the Court and the remand of the accused having been granted in spite of that.

7. In view of what has been stated above, i.e. that the remand of the petitioner had been obtained without complete or incomplete challan having been submitted to the trial Court, and as only one gram of heroin recovered was sent to the Chemical Examiner for his report and a positive report in respect thereof shall not bring the case of the accused within the prohibitory clause, and as the search leading to the recovery of the said heroin was not in accordance with the section 103, Cr.P.C.; therefore, the petitioner is hereby admitted to bail in the sum of Rs.30,000 with two sureties in the like amount to the satisfaction of trial Court. N.H.Q./N-337/L Bail allowed.