1. The applicant was arrested on 24-4-1978 on the basis of spy information received by Ghulam Nabi, Sub-Inspector Excise, Tando Mohammad Khan. On personal search of the applicant, a plastic packet from the fold of the Shalwar containing pieces of 'charas' was secured in presence of the Mashirs. On further interrogation the applicant led the police party to a graveyard and from the bushes produced `charas' weighing one maund and three seers.
2. The learned counsel has raised several legal points in respect of the search and recovery in presence of the Mashirs by the Excise police. For the purposes of bail, it is not necessary to give a finding at this stage.
3. The learned Ist Additional Sessions Judge, Hyderabad by his order dated 17-5-1978 had rejected the bail plea on the ground that though the offence is not punishable with death or imprisonment for life, but cases are to be decided on their merits. It was further observed by the learned Judge that there is abundant law on the point that bail cannot be granted as a matter of course to all accused involved in offences not punishable with death or imprisonment for life. Reliance was placed on 1973 P Cr. L 1 1009. Since there was evidence of incriminating nature against the applicant, the learned Judge had rejected the bail application.
4. It has been pointed out that the offence alleged against the applicant is not punishable with death or imprisonment for life, which even the learned Judge had himself observed in his order. From the personal search of the applicant only one packet containing few pieces of `charas' was recovered.
5. The rest of the ---charas--- was secured from the graveyard. Argument has been advanced in respect of the authenticity of the recovery of the `charas' from the graveyard. Be that as it may, the question that arises at this stage is whether the nature of the evidence is such which could deprive the applicant of the provisions of law relating to bail where the sentence is not death or imprisonment for life. I am referred to the case of Haji Wali Muhammad under section 167, (8-a), 81 of Sea Customs Act, relating to smuggling of large quantity of gold valued about one crore of rupees (1969 SCMR 233). Their Lordships of the Supreme Court were pleased to observe: "That the evidence against the petitioner was still to be evaluated and that as a general rule, on a charge of the kind made in this case, not involving the sentence of death or transportation for life, bail should ordinarily be allowed, disregarding the grounds of the seriousness or anti-social nature of the offence, unless there be strong grounds, in the shape of the evidence, for belief that he is guilty."
6. Another case cited is reported in 1978 SCMR 64 wherein the bail was allowed to the petitioner in the case under section 419/420/468/471/409, p. P. C. When a sum of Rs. 1,70,000 was recovered from the petitioner. Lastly the case reported in 1971 P Cr. L J 136 was relied upon, where the applicants were facing trial for offences under sections 408 and 420, where the learned Single Judge had observed that : "It is now well settled that in the case of non-bailable offences which are not punishable with death or transportation for life, the grant of bail should be the rule and the refusal thereof should be an excep--tion to that rule."
7. In view of the case-law the learned Assistant Advocate-General rightly concedes that this is a case in which he would not oppose the grant of bail to the applicant, who shall be released on his furnishing one surety in the sum of Rs. 10,000 and P. R. Bond in the like amount to the satisfaction of the trial Court.