Possession of narcotic drugs

Accused/appellant was already in custody of the police when a habeas corpus petition for his recovery was moved, however, Police asserted that he was arrested in connection with another FIR

Complainant alleged that the accused under custody, during interrogation made disclosure of 504 grams of Charas present in his house

Held, that there was no bar for a police officer to become complainant of the case and also to investigate it, unless prejudice was not pleaded by the accused facing trial or that such police officer was having some grudge or vengeance against the accused

Rancour or hostility of the police officer could be perceived from record based on some confidence inspiring substance

If complainant claimed that the appellant got recovered narcotic substance and that too during the investigation of an earlier registered criminal case, then as a token of fair investigation, he should have let some other police officer probe the matter but, in the present case, he himself performed each and every step of investigation from drafting of complaint to forwarding of accused to the judicial custody

Thus, he (complainant) ensured that no other police officer of higher rank got opportunity to dilate upon the genuineness or otherwise of the acclaimed recovery proceeding and violated the principle of natural justice which laid down that no one should be a judge of his own case

Alleged disclosure was made by the accused within four walls of concerned Police Station wherein some other police officials of higher ranks were also present

Complainant also did not endeavor to get search warrant from the concerned Court

Departure from the necessity of S. 21 of Control of Narcotic Substances Act, 1997 ('CNSA, 1997') on the part of Searching Officer, without any justifiable reason, in special statute, could not be appreciated

Where a thing was provided in law to be done in a particular manner it had to be done in that manner and if not so done the same would be unlawful

Said principle arose out of maxim "a communi observentia non est recedendum", which became more inflexible in cases arising out of special enactments like CNSA, 1997

Such facts convincingly demonstrated the malice of the complainant which was so deep rooted that he thought it better to investigate the case himself for appropriately grilling the appellant

Such sinister design lead one to believe that narcotics substance was planted to wreck vengeance against the appellant which arose out of a habeas corpus petition filed on his (accused's) behalf

Registration of a criminal case upon a complaint prepared at crime scene was also an important factor, and onus to prove the same also rested upon the shoulders of the prosecution, however, police official who transmitted the draft of complaint to the Police Station was neither cited as witness in report under S. 173, Cr.P.C., nor appeared in the dock during the trial

From the absence of any explanation for withholding the said evidence, Court leaned to hold that probably he was not willing to become a false witness

Record revealed that appellant, who was indicted as a juvenile, was not supplied with copies of documents mentioned in S. 265-C, Cr.P.C., at least seven days prior to framing of charges

Said non-compliance by the Trial Court would amount to vitiating the whole trial

Conflict/contradictions was also found in statements of recovery witnesses regarding place where the recovery memo was signed by the respective witnesses and number of officials of police contingent

Prosecution failed to establish the guilt of accused with regard to the alleged recovery of 504 grams of Charas beyond any shadow of doubt

High Court set aside conviction and sentence passed by the Trial Court and appellant stood acquitted

Appeal was allowed, in circumstances.

Police party had received spy information about the accused but it did not associate private persons to witness the recovery proceedings

Complainant admitted that caretaker of the graveyard and some visitors were present but he did not associate any of them to witness the recovery proceedings

Where recovery was made after prior information, even in the presence of private persons, then failure to secure independent witnesses could not be brushed aside lightly by the court

Three thousand grams of hashish was recovered from the accused but only 200 grams was sent to the Chemical Examiner for analysis, hence, it could not be said as to whether the remaining 2800 grams were hashish or not

Delay of four days in sending the recovered hashish to Chemical Examiner was not explained by the prosecution

Complainant of the case had acted as Investigating Officer

Complainant and Investigating Officer were two opposing parties; investigating officer was not required to establish the prosecution or complainant's case but it was his duty to discover the real truth from the entire story of the complainant party

Appeal was allowed and the accused was acquitted from the charge, in circumstances.

Raiding party, according to first information report (FIR), had prior spy information about the accused having hashish but no private person was associated to witness the recovery proceedings

When recovery was stated to have taken place near a petrol station, then failure to secure independent witnesses could not be brushed aside

Prosecution witnesses had statedly tried to associate private persons at the place of recovery but private persons excused, however, admittedly no action was taken against those private persons, hence, such assertion did not carry weight

No fake customer was sent for purchase of hashish from the accused before the raid

Complainant was also the Investigating Officer of the case

Complainant could not have investigated the same case, which must have been investigated by an independent officer

Constable who carried the case property to the Chemical Examiner was not examined by the prosecution in order to show safe transmission

Case against accused stood established in spite of discrepancies

Appeal was dismissed and sentence of accused was reduced to the one already undergone.

Prosecution is duty bound to establish the safe custody of narcotics through credible evidence.

Case property was not sealed on the spot which fortified the assumption that 'Memo of Arrest and Recovery' was not prepared on the spot

Offence took place on 30/07/2016 but the case property was received in the office of Chemical Analyzer on 03/08/2016

Date of letter through which case property was handed over to the bearer was blank in the report of chemical analyzer

No date was mentioned in the letter through which the property was sent to the chemical analyzer

Bearer was not examined to clarify as to in whose custody the case property was from 30/07/2016 to 03/08/2016. WHC (Writing Head Constable) of the police station was not examined to verify that the property remained in the police station

Prosecution failed to establish the case against accused, as such he was acquitted of the charge, in circumstances.

Quantity of contraband and expected quantum of punishment would be taken into account while allowing bail to accused person

Investigation of case had already been finalized and challan had been submitted before Trial Court and thus physical custody of accused was not required for the purpose of investigation

Case of accused fell within the ambit of S. 497(2), Cr.P.C.

Bail was granted accordingly.

Punishment was to be awarded for the offence to commensurate with the quantity of recovered contraband, therefore, quantum of punishment would be decided by the Trial Court

Whether accused would be liable to maximum punishment in case of proof of guilt after trial and would fall under the prohibitory clause of S. 497, Cr.P.C. was the question requiring further probe

Bail was granted accordingly.

Prosecution case created doubt as to how one could carry a plastic bag of more than one kilogram in fold of his shalwar (pant)

Case of accused had become one of further inquiry falling within purview of S. 497(2), Cr.P.C.

Bail was granted accordingly.

Accused was allegedly found carrying contraband heroin in his stomach to Arab country which describe most stringent punishment to the offender and also carrying Pakistan Passport thereby bringing a bad name to the country

Forensic Science Laboratory report was in affirmative which prima facie connected accused with commission of offence

Accused was not entitled to concession of bail even if offence did not attract the prohibitory clause of S. 497, Cr.P.C.

Bail was refused accordingly.

Accused had already spent over twenty two months behind the bars and prosecution was not coming up with its evidence as four prosecution witnesses were yet to be examined

Early conclusion of trial was not in sight and keeping the accused in jail for further period would tantamount to his pre-trial conviction

Accused was entitled to concession of bail solely on the statutory ground of delay in the conclusion of trial

Bail was granted accordingly.

Accused was behind the bars for thirty months and his trial was not concluded despite issuance of direction by High Court in bail application of accused on statutory ground of delay

Accused was ordered to be released on bail

Bail was allowed accordingly.

Material implicating the accused was statement of co-accused before police which could not be considered as evidence against accused in view of provision of Art.38 of Qanun-e-Shahadat, 1984

Nothing was recovered from direct possession of accused

House from where alleged contraband was recovered belonged to co-accused

Nothing was available on record to show that accused was ever involved in similar cases in the past

Accused remained absconder for sufficient long time but mere abscondance would not disentitle him from concession of bail

Investigation in the case was complete and supplementary challan had been submitted, therefore, accused was no longer required to police for further investigation

Incarceration of accused would serve no useful purpose

Case against accused fell within ambit of further inquiry into his guilt as envisaged in sub-section (2) of S.497, Cr.P.C.

Bail was granted accordingly.

Huge quantity of contraband 'charas' and 'heroin' was allegedly recovered from personal possession of accused, which prima facie connected accused with the commission of offence falling within prohibition contained in S.497, Cr.P.C.

Accused had past history of his indulgence in such like offences

Report of Forensic Science Laboratory was positive

Accused failed to make out a case for grant of bail

Bail was refused accordingly.

Applicant was alien to the proceedings and allowing him to move an application for cancellation of bail would open a floodgate permitting every private individual to settle his personal scores with an accused booked in FIR bearing no direct nexus with that person

Allowing a private individual to move for cancellation of bail allowed to an accused wherein such person was neither a complainant, a witness nor directly aggrieved in any manner would be in complete negation of the mandate of Chapter XXXVIII of Cr.P.C. and it would certainly disturb the fiber of law and frustrate the object and scheme of prosecution

Without touching upon the merits of the case, High Court held that application was not maintainable on account of lack of locus standi which was dismissed accordingly.

Accused was exclusively caught in possession of charas (narcotic) in a stolen car and charas was undoubtedly was linked to him

Offence fell within the prohibitory clause of S.497, Cr.P.C.

Chemical examination report was positive and any delay in forwarding the chemical report would not be fatal to the prosecution case as R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001 was directory

Accused had produced no material to show mala fide on the part of the police and had simply made a bald allegation

Argument of a false and concocted FIR being not sustainable was rejected

Under S. 51, Control of Narcotic Substances Act, 1997 bail could only be granted in such like cases sparingly

Bail was refused accordingly.

Bail was refused accordingly.

Accused belonged to place "A" while the arresting police was from place "B" and as such had no animus or nexus with the accused to involve him in a false case

Prima facie 4.5 kilogram charas (narcotic) was recovered from the accused and chemical report was positive, therefore, S. 9(c) of Control of Narcotic Substances Act, 1997 would be attracted putting the case within prohibitory clause of S. 497, Cr.P.C.

Absence of independent mushirs (recovery witnesses) was not helpful to the accused

Bail, in such like cases, would be granted very cautiously and sparingly especially where massive recoveries had been made and prima facie there appeared sufficient material to connect the accused with the offence for which he was charged

Bail was refused accordingly.

Complainant (police) allegedly apprehended accused and seized from his hand the polythene bag containing four pieces of Charas weighing two kilograms; same was sealed at the spot and memo of arrest and recovery was prepared in presence of witnesses, and then the FIR was lodged at the Police Station

Investigating Officer prepared memo of site inspection, recorded statement of witnesses under S. 161, Cr.P.C. and sent the case property to Chemical Examiner for analysis

Report of Chemical Examiner showed that parcel was found in three seals packets containing four brown coloured pieces of Charas

Case property was also produced before Trial Court during evidence of prosecution witnesses

All the three prosecution witnesses implicated accused being apprehended at specific day, time and place and being in possession of Charas

None of the prosecution witnesses had any enmity with the accused nor was it ever suggested

Credibility of recovery of Charas was attached with memo of recovery even if the sealed parcel was stated to have been signed by the witness at Police Station

Defence plea of accused that accused was arrested seven days before the occurrence and upon non-fulfilment of demand of illegal gratification he was implicated falsely was of no force because neither the accused nor any of his relatives made any complaint to Police nor any application was moved before the court regarding his illegal detention and the person who allegedly arrested accused did not belong to alleged wing of Police

No misreading, non-appreciation of evidence, illegality or factual infirmity existed in the impugned judgment

Appeal was dismissed accordingly.

Person on driving seat of the vehicle could be held responsible for transportation of the narcotics having knowledge of the same because possession could be joint one with two or more persons

Discretion under S. 497, Cr.P.C. might not be exercised liberally in case of huge recovery of narcotics

Bail could not be granted to an accused person charged with an offence under Control of Narcotic Substances Act, 1997 or under any other law relating to narcotics where the offence was punishable with death

High Court declined grant of bail.

Punishment provided under clause (c) of S. 9, Control of Narcotic Substances Act, 1997 was either death, imprisonment for life or imprisonment for a term which might extend to fourteen years with fine which might upto one million rupees

Entire charas was sent to Chemical Examiner for analysis and his report was in positive

Investigation was conducted by officer of local police against whom no allegation of enmity was levelled

Association of any private witness was not the requirement of Control of Narcotic Substances Act, 1997 in view of S. 25 of the said Act which had excluded applicability of S. 103, Cr.P.C.

Non-mentioning of number of slabs of narcotic substance in FIR and memo of recovery was not fatal to prosecution case when number of packets were mentioned

Delay of a few days in sending case property to Chemical Analyzer was of no consequence for the reasons that R. 4 of Control of Narcotic Substance (Government Analysts) Rules, 2001 which prescribed seventy two hours for sending contraband articles to Chemical Analyzer was directory and not mandatory

Sentencing policy was not applicable at bail stage

Sufficient material was available on record to connect accused with commission of alleged offence

Bail was refused accordingly.

Offence under S.9(c) of Control of Narcotic Substances Act, 1997 was punishable for death or imprisonment for life therefore accused was required to be defended by a counsel and trial to be conducted in presence of his counsel

If accused was unable to engage counsel, Trial Court would have provided facility of a counsel on State expenses before framing of charge

In the present case, charge and examination-in-chief of one prosecution witness was recorded in absence of counsel for the accused

Trial in absence of counsel for the accused was an illegality which could not be cured under S.537, Cr.P.C.

One of the duties of Trial Court was to see that accused was represented by a qualified legal practitioner in the case involving capital punishment

Trial Court did not perform its function diligently so as to protect the rights of the accused in the case involving capital punishment

Case was remanded to Trial Court for re-trial after framing fresh charge in presence of the advocate for accused

Appeal was allowed accordingly.

Accused's bail application before Trial Court had already been dismissed by a well-reasoned order which required no interference

Question of amount of sample of norcotic substance for examination of Chemical Examiner could not be gone into at bail stage as the same required a deeper appreciation of evidence

Accused was caught red-handed at the airport attempting to smuggle heroin in an ingenious manner

Narcotic was concealed in the baggage at the Airport, thus there was no chance that same was foisted on accused

No enmity had been alleged between customs officials and accused

Chemical report was positive

Accused was not entitled to bail in circumstances

Bail was refused accordingly.

Section 25, Control of Narcotic Substances Act, 1997 expressly excluded the provision of S.103, Cr.P.C. in cases falling within the ambit of said Act

Questions of delay in sending narcotics and as to whether the same were not tampered with would be determined at trial

Police Officer was not prohibited under the law to be complainant if he was a witness to the commission of offence and also to be an Investigating Officer, so long it did not in any way prejudiced the accused person

Entire seizure of narcotic was sent to chemical examiner who, in his report had mentioned that a sample from each piece was tested which was tested positive to be charas (narcotic)

No case for admitting the accused to bail had been made out

Bail was refused accordingly.

Report of Chemical Examiner showed that only ten grams of norcotic was sent to the Chemical Examiner for analysis and it was not made clear that ten grams which were sent to the Chemical Examiner were taken from all the pieces of charas recovered from the accused

Sentence of accused for ten grams of charas under S.9(b) Control of Narcotic Substances Act, 1997 would meet the ends of justice in circumstances

Samples were to be secured from every packet of narcotic substance recovered in a case and each such sample would be separately tested by Chemical Examiner

Accused had already served out sentence of 13 months and 8 days excluding remissions

Accused was on bail, his bail bonds were ordered to be cancelled and surety discharged

Appeal was disposed of accordingly.

Accused was driving the truck while co-accused was sitting beside the driver at the time of arrest and Charas (narcotic) was recovered from fuel tanks of the truck

Accused being driver could not be absolved from responsibility regarding narcotics being carried in his vehicle

Plea raised by accused under S.342, Cr.P.C. that he was driving the truck at the request of owner who was released by officials on some consideration and Charas was recovered from the truck, was not believable

Co-accused had taken the plea that he had no concern with the driver and he had taken lift on way for reaching his destination

Co-accused had not entered into the witness box to record his statement under S.340(2), Cr.P.C. in disproof of prosecution allegations nor he had produced any evidence in defence

Plea of co-accused was not believable for the reason that it was truck and not bus

Case against both the accused had been proved and defence pleas raised by them appeared to be afterthought and the same had not been substantiated by reliable evidence at trial

Appeal was dismissed accordingly.

Section 25, Control of Narcotic Substances Act, 1997 expressly excluded applicability of S. 103, Cr.P.C. in narcotic cases

Non-existence of criminal record of accused could not be made sole basis for grant of bail

Ground that S. 6, Control of Narcotic Substances Act, 1997 was not attracted as police did not apprehend any purchaser of narcotics was misconceived as said section was also applicable to mere possession of narcotics

Prima facie, accused was apprehended red-handed in possession of narcotics

Bail was refused accordingly.

Allegation against accused was that 470 grams of Charas was found in his exclusive possession and due to non-availability of private witnesses, the official witnesses were appointed as marginal witnesses of arrest and recovery

Prosecution separated only 10 grams of Charas from the recovered quantity

Effect

Mode and style of sampling had not been described by the complainant either in the memo of arrest and recovery or during deposition

Prosecution case was that they apprehended the accused on the tip of information but they did not try to associate any private person

Report of the Chemical Examiner described the date of receiving the case property but record was silent about the date of sending the case property

Exhibited letter of sending the case property showed endorsement of receiving the property on certain date but different date was mentioned with a different pen in ink on the carbon copy

Prosecution case was not free from doubt, in circumstances

Accused was entitled to benefit of doubt

Conviction and sentence recorded by the Trial Court were set aside

Appeal was allowed accordingly.

No adverse inference for having not associated the private person in recovery proceedings could be drawn against prosecution

Report relating to the samples of charas (narcotic) sent in sealed parcels to Forensic Science Laboratory was positive

Contention that accused was taken away by three/four persons eleven days prior to the incident was without any material consideration

Offences punishable under the Control of Narcotic Substances Act, 1997 were against society at large and were heinous in nature, therefore, approach of court was to be dynamic and technicalities would be overlooked

Bail was refused.

Bail was refused accordingly.

Money transactions revealed that Shipper and Exporter both were equally responsible for transportation of goods in the container; there was huge quantity of prohibited contraband and yet it would be determined after trial, whether the accused was proved to be the facilitator

Unexplained and noticeable absconsion of accused disentitled him to the concession of bail notwithstanding merits of the case

No enmity was shown by accused with Anti Narcotic Force personnel for his false implication

Accused was fully implicated in smuggling of hazardous drugs detrimental to human life in connivance with other accused/facilitators who were earlier convicted by Trial Court and their conviction was upheld by the Supreme Court

Bail was refused accordingly.

Section 51 of Control of Narcotic Substances Act, 1997 provided that bail would not be granted to accused charged with offence under said Act or any other law relating to narcotics where offence was punishable with death

Discretion under S. 497, Cr.P.C. could not be exercised with regard to offences punishable with death or imprisonment for life unless court was satisfied that charge was false or groundless

Deeper appreciation of record at bail stage could not be gone into but only it was to be seen as to whether accused was, prima facie, connected with commission of offence or not

Case of accused was distinguishable from case of co-accused who had already been admitted to post-arrest bail; rule of consistency was not applicable to the present case

Bail was refused accordingly.

Complainant had stated that mashirnama was written by his subordinate and said subordinate deposed that mashirnama in question was written by another person

Complainant stated that statements under S. 161, Cr.P.C. of prosecution witnesses were recorded by him while prosecution witnesses deposed that said statements were recorded by Munshi (clerk of police station)

Complainant had deposed that he sent the sample to Chemical Examiner on the next date through carrier, perusal of report of Chemical Examiner showed that said carrier deposited parcel of case property in the office of Chemical Examiner after two days of its handing over to him by complainant

Prosecution had not examined carrier to explain as to whether the property was kept in safe custody for two days

Benefit of doubt was extended to accused not as a matter of grace or concession but as a matter of right in circumstances

Prosecution had failed to prove its case against accused beyond shadow of doubt; impugned judgment was set aside and accused was acquitted of the charge

Appeal was allowed accordingly.

Complainant had deposed that opium was recovered in the round shape from the possession of accused but at the time of cross-examination he replied that opium produced in Court was not in round shape

None of the prosecution witnesses had deposed as to what had happened to the recovered substance after its recovery and with whom the same had been deposited for safe custody for such a long time

Prosecution witnesses had given different versions with regard to the places of patrolling for reaching at the place of arrest of accused and recovery of opium as given by the complainant

Although applicability of provisions of S. 103, Cr.P.C. had been excluded under the Control of Narcotic Substances Act, 1997 yet it did not debar or prohibit the officers making recoveries on such places which were necessarily surrounded by people to take some steps to associate private persons in the process so as to lend credence to the recovery and create confidence in general public

Accused had raised a specific plea that they had been involved falsely by police, in such circumstances prosecution evidence required independent corroboration which was lacking in the case, therefore, case of prosecution was doubtful

Accused was entitled to benefit of doubt

Conviction and sentence recorded by the Trial Court was set aside

Appeal was allowed accordingly.

Complainant (police) alleged that huge quantity of narcotics was recovered from the possession of accused and from the vaults of their car

Accused were family members of the main culprit who was notorious for similar offence

Accused were involved with him in the transportation of a huge quantity of narcotics which was sufficient to attract the charge of criminal conspiracy of doing a particular criminal act i.e. transportation of drugs in huge quantity

Accused were travelling together and womenfolk of the family of the main accused and at the time of recovery the narcotics were in their joint possession

Court was to curb such manic sternly and not to show sympathy in such like case

Concession in granting bail to the female accused would be unfair and even if accused were released temporarily, in all probability, they would continue their nefarious activities of trafficking or dealing in intoxicants clandestinely

In the present case, prima facie, no case of further inquiry within the meaning of subsection (2) to S. 497, Cr.P.C. had been made out for the grant of bail

Bail was refused accordingly.

Section 51, Control of Narcotic Substances Act, 1997 was a clear bar to grant the bail to the accused booked under the Act

Contention of counsel that very arrest of the accused by the local police was illegal was devoid of any force as under S. 59, Cr.P.C. even a private person could arrest an accused who committed a non-bailable and cognizable offence

No doubt local police could register a case in case of recovery of narcotics but soon after registration of FIR the accused and recovered material must be handed over to Anti-Narcotics Force authorities for further proceedings otherwise the very object of Special Law would be made redundant

Accused was, prima facie, linked with the commission of offence

Bail was refused accordingly.

Counsel for accused mainly argued that ordinary police had no power to chalk FIR for offence of S.9(c) Control of Narcotic Substances Act, 1997 and such defect in the investigation of case entitled accused for grant of bail

Chief Court observed that local police had no power whatsoever to chalk FIR of the occurrences of offences falling in Control of Narcotic Substances Act, 1997

Police was directed to approach the Court of Anti-Narcotics for return of the challan if already submitted and if not so far submitted the challan they should return the case file to the police of Anti-Narcotics

If the challan had already been submitted before the Court of Judge Narcotics, he might also return the file to the Narcotics Force who would resubmit the challan after doing needful

Possibility of chalking the FIR with ulterior motive by the local police could not be overruled

Accused could not take benefit of mistakes of the police even at bail stage

Bail was refused accordingly.

Without commenting on merits/ demerits, Court, in the present case, was of opinion that only 1000 grams of "Charas" (narcotic) was allegedly recovered from the possession of the accused which would fall under S.9(b) and not under S.9(c) of the Act, 1997

Sentence for the offence under S.9(b) was only seven years which did not fall within the prohibitory clause of S.497 Cr.P.C.

Bail was granted accordingly.

Bail was granted accordingly.

Accused was behind the bars for one and a half year and directions were issued to Trial Court twice to conclude the trial but even after the lapse of more than a year, Trial Court had examined only one witness

If the Trial Court proceeded trial with such speed that would not be concluded in a near future

High Court directed to release the accused on bail in circumstances.

Trial Court in case of failure of accused to engage counsel, was legally obliged to appoint counsel for accused on State expense, which was not done

Trial Court recorded examination-in-chief of five prosecution witnesses and accused had no opportunity to cross-examine the prosecution witnesses

To defend any criminal proceeding, whether heinous or minor, was a fundamental and essential right of accused as protected under Art. 10-A of the Constitution

Under Arts. 133 & 151, Qanun-e-Shahadat, 1984 right of cross-examination was not merely a formality but a valuable right conferred by the law

Even otherwise, in reaching just and fair conclusion of trial, the accused must not be stripped of his valuable right of fair, reasonable and impartial trial in due course of law and to do away with the same was the negation of concept of due process of law

Case was remanded to the Trial Court.

Complainant assailed the vires of judgment passed by Special Court which on confessional statement of accused had convicted him under S. 9(c), Control of Narcotic Substances Act, 1997

Section 47 of Control of Narcotic Substances Act, 1997 had made Code of Criminal Procedure Code, 1898 applicable to trial and appeals before a Special Court

Section 48 of the Act contemplated an appeal to High Court against an order passed by a Special Court comprising Sessions Judge or Additional Sessions Judge and in the present case, the Court was that of Sessions Judge thus Ss. 435 & 439, Cr.P.C. would be inconsistent to Ss. 47 & 48 of Control of Narcotic Substances Act, 1997

Order passed under the Act could not be assailed by invoking revisional jurisdiction of High Court

Criminal revision was dismissed being not maintainable.

Complainant (police official) alleged that he along with other contingents conducted raid and arrested accused persons in possession of charas (narcotic)

Ocular account was furnished by complainant and prosecution witness during first round of trial

After remand of case by High Court, the Trial Court proceeded to re-call the prosecution witnesses and recorded cross-examination

No coercive measure was taken to re-call Moharrir for cross-examination and even the defence also did not submit any application to cross-examine the said witness

Despite grant of opportunity to the accused to cross-examine the said witness, the object of remanding the appeal had not been served as no coercive measures were adopted to procure the attendance of aforesaid witness for cross-examination, which negated the concept of fair trial as contemplated under Art. 10-A of the Constitution

High Court observed that remand of care for the second time was not appropriate as the accused had already suffered the agony of trial for last more than seven years

Accused on such score only deserved acquittal from the charge instead of remanding the case second time

Only evidence available with the prosecution to testify recovery memo was the deposition of prosecution witness who had though testified the same yet it did not find unimpeachable corroboration of any other prosecution witness which was essential to prove the factum of recovery from the accused

Prosecution had another important witness to testify the recovery memo being member of raiding party but the said witness was withheld by prosecution

Presumption under Art. 129(g) of Qanun-e-Shahadat, 1984 would be that had the said witness been produced by the prosecution in the witness box, he would have not supported the prosecution version qua the factum of recovery from the possession of accused

Sole deposition of prosecution witness qua recovery of contraband substance from the accused required corroboration but the same lacked in the case, therefore, his credibility without any corroboration was not safe to be believed

Sample of recovered contraband substance was sent to the Office of Chemical Examiner through carrier (prosecution witness) who deposed that he received a sealed parcel containing charas, he had nowhere submitted that the sealed parcel was earlier submitted in the office of Excise and Taxation and after getting letter from the said office, the parcel was deposited in the office of Chemical Examiner

Report of Chemical Examiner showed the name of forwarding officer as Excise and Taxation Officer who had nothing to do with the same

Excise and Taxation Officer was neither a member of raiding party nor a person to whom the parcel was delivered for onward transmission to the office of Chemical Examiner in the intervening period when the parcel was received from the Moharrir of Police Station and deposited in the office of Chemical Examiner

Name of Excise and Taxation Officer as forwarding officer was a question mark with regard to safe custody of recovered contraband substance

Nothing was available from the record with regard to the role of Excise and Taxation Officer being a forwarding officer

Even if it would be presumed that the parcel was first submitted to the office of Excise for getting covering letter, the possibility of tampering with the sample could not be ruled out

Safe custody of the narcotics was necessary ingredient to prove the charge of narcotics

Even a positive report of Chemical Examiner did not support the prosecution version as the parcel had not been directly received from the representative of the police to the office of Chemical Examiner and intrusion of Excise and Taxation Officer would cast serious doubt with regard to the safe custody of the sample contraband substance

Even a single doubt was sufficient to extend benefit in favour of an accused but the present case was replete with doubts

Accused was acquitted

Appeal was allowed accordingly.

Complainant and mashir (witness) deposed that sixty seven rods of charas (narcotic) were recovered from the possession of accused

Investigating Officer deposed that three pieces of charas and sixty six rods of charas were handed over to him by the complainant

Complainant deposed that they returned to specific police station and got registered FIR of the case against accused while mashir deposed that they returned to different police station and FIR was lodged there

Complainant in cross-examination deposed that they reached at CIA Centre on the relevant date at 8:00 a.m. and so also his staff came there while mashir in cross examination deposed that on relevant date of incident he reached at CIA Centre for duty at 2100 hours (night)

Complainant and the mashir were unable to tell the way they had adopted to reach at the place of occurrence

Complainant denied the suggestion that present accused was not known to him prior to the present case while mashir deposed that present accused was not known to them previously except in the present case

As per prosecution case three big pieces and sixty seven rods of charas were allegedly recovered from the accused while as per report of the Chemical Examiner three slabs and sixty seven rods of charas were sent to him for chemical examination

Such contradictions had destroyed the intrinsic value of the prosecution case

Arrest and recovery in the manner as alleged by the prosecution had become totally doubtful

Prosecution had not been able to prove its case beyond any reasonable shadow of doubt, appeal was allowed accordingly.

Case fell within the prohibitory clause of S.497, Cr.P.C. and prima facie there was sufficient material to connect the accused with the offence for which accused was charged

Bail was refused accordingly.

Complainant (police) produced Chemical Examiner's Report which showed that representative samples contained charas (narcotic)

Prosecution witnesses had fully supported the prosecution case and given a quick accurate account of the incident

No material contradiction in their statement was found and their evidence was trustworthy and confidence inspiring

Contention of counsel about conscious knowledge of possession by accused was without force as recovery was effected from single plastic sack lying adjacent to driver seat and both the accused were present in the truck

Both the Excise Police officials were competent witnesses like any other independent witness and their evidence could not be brushed aside or thrown simply for the reason that they were excise officials

No bar existed on conducting investigation by Excise Police officer who was also a complainant in the case

Conclusion drawn and reasons recorded by Trial Court had shown fair evaluation of evidence

Appeal being meritless was dismissed accordingly.

Evidence of both the prosecution witnesses was consistent on all the material particulars such as date, time, place and manner of recovery

Prosecution also produced departure and arrival entries before the Trial Court

Non-association of private persons during investigation would not invalidate the proceedings because by virtue of S. 25 of Control of Narcotic Substances Act, 1997 non-citing of public witnesses was not fatal to the prosecution case as S. 103, Cr.P.C. had been excluded from its application in such cases

No malice or mala fide or enmity had been attributed to the prosecution witnesses to foist such charge upon the accused

Police Officer was not prohibited by law to be complainant if he was witness of offence/investigating officer if it did not cause prejudice to accused

Non-examination of Writing Head Constable (WHC) of Police Station was not fatal to prosecution case as there was no allegation that the case property which was kept under the custody of WHC was tampered with or manipulated

Accused had not taken any specific plea in defence

All the prosecution witnesses had successfully passed the test of lengthy cross-examination but no material discrepancies had been credited by the defence counsel in favour of accused

Prosecution had proved its case against the accused beyond any shadow of doubt

Appeal was dismissed accordingly.

Complainant (police) intercepted accused on main road while riding on motorcycle and recovered charas (narcotic) concealed in a blue shopper

Accused was apprehended from a thickly populated area but complainant neither associated any private mashir nor made any serious efforts to involve any public person to act as mashir to maintain transparency of alleged recovery nor furnished any explanation

Recovered substance was weighed at the spot and total weight was presumed to be 2 kg

No mashirnama of recovery of narcotic substance was prepared at the spot

Court could enlarge the accused on bail in case of recovery of charas when prosecution had failed to conclude the trial within three months

Accused was behind the bars for more than eight months but prosecution had failed to examine even a single witness to substantiate charge though it was not a difficult task to procure attendance of prosecution witnesses who were police officials

Any iota of doubt if arisen even at bail stage would be counted in favour of accused

Accused had succeeded to make out a case for grant of bail on the ground of further inquiry as contemplated under S. 497(2), Cr.P.C.

Bail was granted accordingly.

Question as to the net weight of recovered narcotics and whether the case fell within the ambit of S. 9(b) or 9(c) of Control of Narcotic Substances Act, 1997 would be determined after recording of evidence

Case of accused was not covered within the prohibitory clause of subsection (1) of S. 497, Cr.P.C. as the punishment provided for the recovered quantity was four years, six months and fine of rupees twenty thousands

Accused was not a previous convict or hardened criminal or habitual offender and was first offender and was in jail since his arrest

No apprehension of tampering with the prosecution evidence existed as all the mushirs were police officials

Bail was granted accordingly.

Neither samples were separated from alleged recovered narcotic substance on the spot nor mode of weighing of recovered charas (narcotic) had been mentioned in the FIR

Weight of substance was not disclosed

Prosecution had failed to produce a single witness (police officials) within a period of two years

Accused could not be deprived from the enlargement on the basis of other cases, while he deserved grant of bail on merits

Accused was not previous convict and was no more required for further investigation

Accused had succeeded to make out a case of further inquiry

Bail was granted accordingly.

Entry into the house without permission of its occupants and without obtaining a search warrant under S. 98, Cr.P.C. was not permitted

Station House Officer of Police Station had violated the sanctity of "Chaddar and Chardiwari" which was not permitted

Chief Court observed that Police officer who entered house of any stranger, could be termed as trespasser and necessary criminal proceedings could be initiated against him by the complainant

Narcotics recovered from accused was sealed at the spot but FIR was completely silent regarding separation of sample of allegedly recovered narcotic for further dispatch to Chemical Examiner for expert opinion

Alleged drug was not sent to Chemical Examiner, thus, it could not be presumed legally that the stuff so recovered was intoxicant

Registration of FIR by local Police under Control of Narcotic Substances Act, 1997 needed a thorough and detailed judgment in the light of law laid down in PLD 1997 SC 408

Whenever and wherever two views were possible, the view, which favoured the accused would be adopted

Bail was granted accordingly.