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Petitioner: NOMAN alias NOMA VS Respondent: StateHonorable Justice Sardar Muhammad Sarfraz DogarKhawaja Qaiser Butt
2020 P Cr. L J Note 40 [Lahore (Multan Bench)] Before Sardar Muhammad Sarfraz Dogar, J NOMAN alias NOMA---Petitioner Versus The STATE and others---Respondents Criminal Misc. No. 2504-B of 2019, decided on 17th June, 2019. (a) Criminal Procedure Code (V of 1898)--- ----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 9(c)---Possession of narcotics---Bail, grant of---Borderline case---Non-availability of report of Government Analyst---Further inquiry---Completion of investigation---Scope---Accused, on the pointation of informer, was apprehended and on his personal search, charas weighing 1265 grams was recovered---Alleged recovery though fell under S. 9(c) of Control of Narcotic Substances Act, 1997 but slightly exceeded the maximum limit as prescribed under S. 9(b) of Control of Narcotic Substances Act, 1997---Recovered contraband was wrapped in a polythene shopper and it was not clear as to whether the weight of the recovered substance was conducted with or without the same---Report of Government Analyst was still awaited, without which, nature of the recovered substance could not be exactly determined---Said discrepancies were sufficient to bring the case of the accused within the ambit of further inquiry as per contemplation of S. 497(2), Cr.P.C.---Accused was the first offender having no criminal antecedents---Investigation of the case was complete and person of the petitioner was not required by the police for the purpose of further investigation---Petition for grant of bail was allowed, in circumstances. (b) Criminal Procedure Code (V of 1898)--- ----S. 497---Bail---Heinous nature of offence---Scope---Mere allegation of heinous offence is not sufficient to keep the accused behind the bars. (c) Control of Narcotic Substances Act (XXV of 1997)--- ----S. 51---Criminal Procedure Code (V of 1898), S. 497---No bail to be granted in respect of certain offences---Further inquiry---Scope---Where accused succeeds in establishing that his case calls for further inquiry and probe, then rigors contained in S. 51, Control of Narcotic Substances Act, 1997 would not attract. Khawaja Qaiser Butt for Petitioner. Muhammad Ali Shahab, Deputy Prosecutor-General for the State. Date of hearing: 17th June, 2019. ORDER SARDAR MUHAMMAD SARFRAZ DOGAR, J.---Through the instant petition under section 497, Cr.P.C., Nauman alias Noma the petitioner seeks his release on post-arrest bail in case FIR No.82 dated 20.02.2019 offence under section 9(c) of the Control of Narcotic Substances Act, 1997 ("CNSA, 1997") registered at City Sahiwal, District Sahiwal. 2. As per contents of FIR, precisely, on 20.02.2019, when the complainant along with other police officials was on patrol duty, when he received a spy information that petitioner is selling charas in "Pull Bazar", and if a raid be conducted, he may be apprehended. Whereupon, he constituted a raiding party and conducted a raid. On the pointation of informer, he apprehended a person, who disclosed his name as Nauman alias Noma, the petitioner. On his personal search, charas weighing 1265-grams were recovered from a black shopper which he carrying in his right hand along with sale proceed of Rs. 300. 3. Heard. Record perused. 4. According to the contents of the FIR, the petitioner was apprehended by the police and 1265-grams charas was allegedly recovered from his possession.. Though the alleged recovery apparently falls under section 9(c) of the C.N.S.A., 1997 but slightly exceeds the maximum limit as prescribed under section 9(b) of the C.N.S.A., 1997 to bring the case of the petitioner within the mischief of section 9(c) of the C.N.S.A., 1997. The recovered contraband was wrapped in a polythene shopper and at present, it is not clear as to whether the weight of the recovered substance was conducted with or without the same. Thus fact would be determined by the learned trial Court after recording of prosecution evidence that what was the net weight of alleged recovered narcotic and as to whether the case of the petitioner falls under section 9(b) or it comes under the ambit of section 9(c) of the C.N.S.A., 1997. 5. Another important aspect of the case is that the report of Government Analyst is still awaited, without which, nature, of recovered substance cannot be exactly determined. Therefore, these discrepancies jointly are sufficient to bring the case of the petitioner within the ambit of further inquiry as per contemplation of section 497(2) of the Code of Criminal Procedure, 1898. Mere levelling of allegations of heinous offence is not sufficient to keep the accused behind the bars. When once accused succeeds to establish that his case calls for further inquiry and probe, then rigors contained in section 51 of the C.N.S.A., 1997 would not be attracted. 6. The petitioner is first offender having no criminal antecedents. He is behind the bars since his arrest i.e.20.2.2019. The investigation of the case is complete and person of the petitioner is no more required by the police for the purpose of further investigation. The petitioner is still awaiting his trial, the conclusion of which is not in sight in near future, therefore, his further detention in jail would serve no useful purpose for the prosecution. Accordingly, this petition is allowed and petitioner is admitted to post arrest bail on furnishing bail bond in the sum of Rs.2,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court. 7. Needless to observe that the observations made hereinabove are only tentative in their nature and are strictly confined to the extent of disposal of instant bail petition. SA/N-30/L Bail granted.