2003 P Cr (PLP)

(c) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑Ss. 497 & 103‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 25‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Ars.3/4‑‑‑Bail‑‑‑Plea of the accused was with regard to non‑compliance with provisions of S.103, Cr.P.C.‑‑‑Validity‑‑‑Plea of the accused was without substance in view of the provisions contained in S.25 of the Control of Narcotic Substances Act, 1997. Muhammad Ijaz Khan Hoti for Petitioner. Tariq Javed, Dy.A.‑G. for the State. Date of hearing: 31st December, 2002. In view of the, general complaint that one Nek Muhammad son of Wazir, resident of Village Char Choor. District Mardan, deals in narcotics business, the local police first conducted a test purchase through a police constable and thereafter conducted raid at the house of the petitioner and recovered there-from Charas weighing 1000 grams. A case in this connection was registered fide F.I.R. No.424 dated 12‑9‑2002 under Articles 3/4 of the Prohibition Order, 1979, read with section 9, Control of Narcotic Substances Act, Police Station Katlang, District Mardan.

2. The petitioner moved an application in the Court of Additional Sessions Judge, Mardan for grant of bail which was rejected vide order dated 22‑10‑2002. The petitioner has approached this Court with the similar prayer.

3. Mr. Muhammad Ejaz Khan Hoti, Advocate for the petitioner, in support of the bail application, contended, inter alia, that the petitioner has been charged on mere suspicion and that there is no incriminating material to connect him with the guilt. Additionally it is submitted that house, wherefrom the Charas is alleged to have been recovered, is not in the exclusive possession of the petitioner but is a joint family house and thus recovery is doubtful. The competency of Judicial Magistrate issuing search warrant has also been challenged in view of the provisions contained in section 20 of the Control of Narcotic Substances Act, 1997. Delayed despatch of the sample to Chemical Analyst has also been brought under challenge. Concluding the arguments, it is submitted that case of the petitioner falls under section 9(b) of the Act and goes out of the embargo contained in section 51 of the Act and as such the petitioner is entitled for grant of bail. Reliance has been placed on 2000 PCr.LJ 657 (Karachi).

4. Mr. M. Tariq Javed, Deputy Advocate‑General on the other hand, opposed the bail application and contended that case of the petitioner falls under the prohibition contained in section 9(c) of the Act and that the petitioner has been refused bail for valid reasons which hardly calls for interference of this Court.

5. Having heard the arguments of learned counsel for the parties in the light of the material on the file I find that Charas weighing 40 grams has been recovered from the possession of the petitioner through a fake customer (police constable in white clothes) whereas the Charas weighing 1000 grams has been recovered from the house of the petitioner during raid conducted by the local police. Apparently there is nothing on the file to demonstrate that the petitioner has been falsely implicated on account of ulterior motive or ill‑will by the police. Prima facie, reasonable grounds do exist in this case to believe in the petitioner's involvement in the offence alleged against him. The submission of the learned counsel for the petitioner that mandatory provisions of section 20 of the Control of Narcotic Substances Act had been flagrantly violated in this case and contraband has not been sent to the Chemical Examiner in time, taken into consideration at this stage. The plea of the petitioner that mandatory provisions of section 103, Cr.P.C. had not been complied with, is also without substance, in view of the provision contained in section 25 of the Control of Narcotic Substances Act. The challan against the petitioner has been submitted in Court and the trial is likely to commence in near future. Finding no substance in this application I dismiss the same.

6. Before parting with this order I would like to add that observations made above are tentative in nature and the learned trial Judge shall decide the case on the basis of the material produced before him. S.M.A.H./660/P Bail declined.