ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No.1587 of 2023
Date Order with signature of Judge
For hearing of bail application
24.8.2023
Mr. Malik Waseem Hussain Awan advocate for the applicant
Mr. Muhammad Iqbal Awan, Additional PG
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Through this bail application under Section 497 Cr.P.C., the
applicant has sought admission to post-arrest bail in F.I.R No.124/2023,
registered under Section CNS (Amended) Act 2022 6 CNS (Amendment)
Act 2022 (3) 9 at Police Station Eidgah Karachi. The earlier bail plea of
the applicant has been declined by the learned Additional Session Judge II
(South) Karachi vide order dated 06.07.2023 in Criminal Bail Application
No.2186/2023 on the premise that sufficient incriminating material in the
shape of narcotics is available against the applicant to prima-facie
connects him in the subject crime.
2. The accusation against the applicant is that he was found in
possession of charas weighing 1020 grams and arrested by Eidgah Police
and brought to the police station along with narcotics, where F.I.R
No.124/2023, was registered against him under Section CNS (Amended)
Act 2022 6 CNS (Amendment) Act 2022 (3) 9. Police obtained the
chemical examiner's report vide letter dated 5.6.2023, which is positive.
3. It is inter-alia contended that the applicant is innocent and has
falsely been implicated in this case; and, the alleged narcotics drug is
foisted upon the applicant/accused. He next contended that the quantity of
20 grams marginally exceeds the upper limit of 1000 grams of charas,
therefore, being a borderline case between clause 'B' and 'C' of section 9
and also because in the given circumstances whether the maximum
punishment of 14 years provided in the alternative would be awarded or
not is also a point of discussion and requires further inquiry in terms of
section 497(2) Cr.P.C., Per learned counsel the alleged recovery of 1020
grams of charas constituted a borderline case in terms of ratio of the
judgment rendered by the Supreme Court and bail was granted. He
further submitted that the chemical examiner's report was still pending
and it could not be decisively concluded at this stage that the recovered
substance was narcotics. He emphasized that it is not established that the
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applicant is a previous convict or involved in the same and similar offense
in the past. He next argued that the pointation of the accused by the
informer is not mentioned in the contents of the FIR, which requires
further inquiry. He has further contended that the description of charas
was not mentioned in the contents of the FIR. There is no independent
witness has been cited by the complainant as the place of incident is a
populated area. He next contended that the investigation has been
completed and he is no longer required for further investigation.
4. Learned APG has opposed the application on the premise that the
applicant is involved in the narcotic case as such he is not entitled to the
concession of post-arrest bail. The learned APG submitted that it is a good
quantity of charas which because of the recent amendment in the law,
through Act No.XX of 2022 in the Control of Narcotics Substance Act
1997, a punishment of 14 years is mentioned which falls within the
prohibitory clause of Section 497 Cr. PC. The learned APG pointed out
that the chemical report is positive which connects the applicant to the
subject crime, thus no case of further inquiry is made out in favor of the
applicant. He next contended that the offense is against society as such the
applicant deserves no leniency and his bail application may be dismissed
5. I have heard learned counsel for the parties and perused the
material available on record.
6. It is settled law that at the bail stage deeper appreciation cannot be
gone into, but only tentative assessment is to be made just to find out
whether the present applicant is connected with the commission of the
offense or not. The offense with which the applicant is charged is an
offense against society at large; the applicant was caught red-handed with
the charas; there is no allegation of any enmity between the applicant and
the police officials who arrested him. Since a direct role has been assigned
to the applicant and the offense carries a punishment of 14 years because
of the recent amendment in the law, through Act No.XX of 2022 in the
Control of Narcotics Substance Act 1997.
7. Prima facie, sufficient material has been brought by the
prosecution on the record including the report of the Chemical Examiner
which was sent to the lab soon after the registration of F.I.R and the report
is positive, which is enough material to discard the point of view so put
forward by the learned counsel for the applicant. In the case of Socha Gul
vs. The State (2015 SCMR 1077), the Supreme Court has held that bail
should be granted sparingly in narcotics cases keeping in mind Section 51
of the Control of Narcotic Substances Act, 1997, which provides a note of
caution as well as the fact that the offense amounts to a crime against
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society. The CNS Act, 1997 consolidates and amends the law relating to
narcotic drugs and psychotropic substances. It controls and prohibits the
prosecution, processing, and trafficking of these substances. It also lays
progressive punishments for narcotic offenses. It provides for the
constitution of Special Courts having exclusive jurisdiction to try narcotic
offenses. The larger interest of the public demands that in case of recovery
of narcotics, the discretion under Section 497 of the Code of Criminal
Procedure should not be exercised liberally. On the aforesaid proposition,
I am guided by the decision of the Supreme Court in the case of The State
v. Javed Khan (2010 SCMR 1989).
8. The learned counsel for the applicant through his exhaustive and
elaborate arguments wanted this Court to give its categorical and specific
verdict regarding an accused having no role in the case in hand. But this
Court is very much clear in its mind that no such precise verdict in bail
matters can be given as every criminal case has its facts and
circumstances. In principle in judicial discretion, whatever may be the
nature of the matter about which it is required to be exercised, has to be
used with due care and caution. Awareness of the context in which
discretion is required to be exercised and of the reasonably foreseeable
consequences of its use is the hallmark of a prudent exercise of judicial
discretion. One ought not to make it a question of exercise of authority to
grant bail in every narcotic case on the ground of ‘further inquiry’ and
‘conscious knowledge’ in disregard to the settled principles of law for
grant or refusal of bail.
9. Regarding the non-association of private persons, section 25 of the
CNS Act exempted their presence in narcotics cases even otherwise the
evidence of police officials is as good as any other citizen. In the case of
Noor Khan vs. The State (2021 SCMR 1212), the Supreme Court declined
bail to an accused from whom 1320 grams of cannabis were recovered by
police officials. Regarding non-compliance with section 21 of the CNS
Act, the Supreme Court in the case of Zafar vs. The State (2008 SCMR
1254), held that sections 20 to 22 of the CNS Act are directory and their
non-compliance would not be a ground for holding the trial/conviction bad
in the eyes of law. Regarding the claim of false implication, this issue
cannot be attended to without going beyond the barriers of tentative
assessment, an exercise prohibited by law.
10. As far as the defense plea and burden of proof are concerned,
under provisions of section 29 of the Control of Narcotic Substances Act,
1997 presumption would be that a person who was found in possession of
narcotics had committed the offence, unless otherwise proved and the
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innocence and guilt of the applicant is yet to be determined by the trial
court.
11. In the above circumstances, I do not find the applicant entitled to
bail at this stage of the case. For what has been discussed above, this Court
is not inclined to accept the prayer of the applicant for a grant of bail on
the ground that the case against the applicant is on the borderline; and the
bail application is accordingly dismissed. As the trial is required to be
commenced forthwith, therefore, the learned trial Court is directed to
conclude the trial within one month positively, at least the complainant
must be examined; and strong reasons shall be forwarded if the trial is not
concluded within time.
12. The observations made hereinabove are tentative and the trial
Court shall not be influenced by the same while deciding the case on
merits.
JUDGE
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