2010 SCMR 580 (PLP)

RAHMAT HUSSAIN JAFFERI, J.

It is alleged that 120 grams of cocaine were secured from the possession of the respondent. The learned Sessions Judge dismissed the bail application but the learned High Court granted the same. The petitioner has filed the present petition for cancellation of bail.

2. We have heard the learned counsel for the petitioner and perused the record. He has stated that the respondent has criminal background and that recovery of cocaine, which is dangerous to the life was made from his possession, therefore, he is not entitled to the concession of bail.

3. After examining the provisions of section 51 of C.N.S. Act, 1997 particularly, subsection (2) wherein it is provided that if the offence is not punishable with death, the bail should not in normal circumstances be granted, unless in the opinion of the Court the case is fit for grant of bail against a substantial amount. While granting bail or otherwise, the Court is required to consider the following facts:

a)?? Whether there is or is not a reasonable ground for believing that the accused has committed the offence with which he is charged? b)?? Whether the case requires further enquiry into the guilt of commission of non-bailable offence within the scope of section 497(2), Cr.P.C.? c)?? Whether the accused is minor, woman, sick or infirm person? d)?? The nature and gravity of the charge. e)?? The severity or degree of the punishment which might follow in the circumstances of the case on conviction.??????? f)??? The danger of the accused absconding if he is released on bail. g)?? The danger of witnesses being tampered with. h)?? The danger of the alleged offence being continued or repeated. i)??? The character, the means and standing of the accused. j)??? An opportunity to the accused to prepare his defence. k)?? The accused has already been in jail for a considerable period and the trial is not likely to conclude in near future at least. l)??? Bail should never be withheld as a punishment.

5. In this case only 120 grams of cocaine were secured from the possession of the accused as such the offence would, fall under section 9(b) of C.N.S. Act. The maximum punishment under the said offence is 7 years. No Chemical Analyzer report has been filed nor the learned Advocate Supreme Court has been able to show us or in possession of such report in spite of our demand. There is no allegation of absconsion of the respondent nor such plea has been taken in the petition. Prima facie there is no question of tampering with the evidence as all the witnesses are officials. No record of previous involvement of similar offence committed by the respondent has been produced or alleged in the petition. In such circumstances, the learned High Court has exercised its discretion justly and fairly in granting bail.

6. This is a petition for cancellation of bail. It is settled law that considerations for cancellation of bail are different from the considerations for the grant of bail. The bail can be cancelled if the order on the face of it is perverse and has been passed in violation of the principles for grant of bail or it is patently illegal erroneous, factually incorrect and has resulted in miscarriage of justice. Reference is invited to State v. Khalid Sharif 2006 SCMR 1265 and Ehsan Akbar v. State 2007 SCMR 482.

7. None of the grounds for cancellation of bail are attracted, therefore, the petition is dismissed. Leave refused. N.H.Q./S-2/SC??????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.