1. ' MUHAMMAD AFZAL SOOMRO J.---By this order I intend to dispose of the above Criminal Bail Application arising out of Crime No.59 of 2007 registered at Police Station Rizvia Society Karachi for offence under section 9(c) Control of Narcotic Substances Act, 1997.
2. ' The facts germane to the prosecution case are that on 6-4-2002 at about 0230 hours complainant A.S.-I. Muhammad Asif Gujjar of Police Station, Rizvia Society, Liaquatabad, Karachi, lodged F.I.R. No.59 of 2007, under sections 6/9C of Control of Narcotic Substances Act, 1997, stating therein that on 6-4-2007, the complainant along with his subordinate staff HC Ameenuddin, PC Hassan Ali Bhutto and Driver PC Ghulam Nabi were in patrolling in the area, when they reached near Zeeshan Hyder Park, Nazimabad No.1, Karachi at about 0130 hours, one Car bearing Registration No.ADH-279, Mehran white colour, was stopped, name of the driver was inquired who allegedly disclosed his name as Muhammad Shahid Chiragho son of ChiraghuMn. On his personal search one pistol was alleged to have been recovered from his fold of shalwar, whereas on search of the said car two packets of charas weighing one kilogram each were alleged to have been recovered. It is further stated that on recovery of charas, the accused/applicant was arrested under sections 6/9C of CNS Act and 13-D Arms Ordinance. The complainant party also alleged to have recovered one mobile phone and cash of Rs.400 from the possession of the applicant. Ten grams of charas was taken out from each packets and were separated for chemical analysis and the rest stuff were sealed. The car was also taken into custody.
3. ' After usual investigation, the charge-sheet was submitted against the applicant in the Court of Special Judge CNS Karachi on 18-4-2007.
4. ' Bail Application on behalf of the applicant was moved before the learned trial Court but the same was declined vide order, dated 10-10-2007, hence the applicant approached this Court for bail plea.
5. ' It has been contended by the learned counsel for the applicant that the applicant has falsely been involved in this case and the norcotic substances have been foisted upon him, as previously, struggling and grappling having been taken place by the applicant with the complainant who is A.S.-I. Of Police Station Rizvia Society Karachi. It has further been contended that in the instant case the provisions of section 21 of the Control of Narcotic Substances Act (XXV of 1997) were not followed inasmuch as the F.I.R. Was lodged by A.S.-I. Muhammad Asif Gujjar of Police Station Rizvia Society, Karachi, whereas the mandatory requirement of law is that an officer not below the rank of Sub-Inspector of Police or equivalent has only been authorized by the said section to detain and search any person whom he has reason to believe that he has committed an alleged offence punishable under the Act, (XXV of 1997). It has also been contended that the alleged recovery of charas has been effected from the car and not from the exclusive possession of the applicant, even the car does not belong to the applicant, the entire police file is silent regarding title of car in question. Learned counsel has stressed upon his contention that on 6-4-2007 Complainant/A.S.-I.
6. Took out sample, only of 10 grams each, out of two packets of Charas for chemical analysis but the same was sent on 17-4-2007, after the delay of 11 days. Learned counsel has further contended that sample of ten grams were taken out from each packet and it is not clear that whether the alleged recovered charas was in the shape of slabs, rods or some other shape. It was the next contention of the learned counsel that alleged recovery of two kilograms of charas from the car, even if the applicant is charged under the Prohibition (Enforcement of Hadd) Order, 1979, the maximum punishment for trafficking of "Charas" regardless of its quantity is five years' R.I. Which would take the case of applicant out of the ambit of the prohibitory clause of section 497(1), Cr.P.C. Learned counsel has relied upon the cases reported as Mumtaz Ali v. The State (2001 YLR 1847), Imdad Ali v.
7. The State (2001 YLR 1848), Haji Abdul Manan v. The State (2005 PCr.LJ 1080), Gul Din v. The State (PLD 2005 Peshawar 162) and Gharibullah v. The State (2002 PCr.LJ 677).
8. ' Conversely, learned counsel appearing on behalf of the State opposed the bail plea of the applicant for the reason that the quantity of alleged recovered charas is two kilograms and the offence with which the applicant is charged is heinous one and against the society.
9. ' I have heard the learned counsel for the respective parties and perused the record made available before me.
10. I am not in agreement with the first contention of learned counsel for the applicant, regarding false implication and foisting the alleged charas upon the applicant due to previous struggling and grappling with the complainant, as no proof regard previous enmity of the applicant with the complainant has been furnished. Further more it is impossible that huge quantity of narcotic substances could be foisted upon anyone.
11. The perusal of record reveals that in the instant case the provision of section 21 of the Control of Narcotic Substances Act, (XXV of 1997) has not been followed, as the F.I.R. Was lodged by Assistant Sub-Inspector (A.S.-I.) whereas the mandatory requirement of law is that an officer not below the rank of Sub-Inspector of Police or equivalent is only authorized by the said section to detain and search any person. The record further reveals that on 6-4-2007 complainant/A.S.-I. Has taken out sample only 10 grams each out of two packets of Charas for chemical analysis and the same were sent on 17-4-2007, after the delay of 11 days, while the required provision of law says that "samples may be dispatched for analysis at the earliest, but not later than seventy two hours of the seizure" without giving any satisfactory explanation in this regard. In the instant case record is silent about satisfactory reason for late sending of samples with 11 days delay to the Chemical Anaylzer. The report of Chemical Analyzer is still awaited, though the applicant is still rioting from 6-4-2007. It is pertinent to mention here that the alleged recovery of charas was effected from the car and not from exclusive possession of the applicant, further more the car in question does not belong to the applicant. It is worthwhile to observe here that alleged recovery of two kilograms of charas from the car, even if the applicant is charged under the Prohibition (Enforcement of Hadd) Order, 1979, the maximum punishment for trafficking of "Charas" regardless of its quantity is five years' R.I.
12. Which would take the case of the applicant out of the ambit of the prohibitory clause of section 497(1), Cr.P.C. The perusal of record also shows that weight of charas is stated to be two kilograms but only 10 grams of each packet were sent for chemical analysis, as such it does not confirm whether remaining substances were either two kilograms charas or less. The Hon'ble Apex Court in the case of Gul Zaman v. The State has held that "Notwithstanding the bar contained in section 51 of the Control of Narcotic Substances Act, 1997, bail could be granted to an accused person and applicability of sections 496, 497, 498, Cr.P.C. Was not totally barred in respect of cases under the said Act. Learned counsel appearing on behalf of the State has failed to controvert the above legal position while opposing the bail plea of the applicant.
13. ' For the foregoing reasons I am of the view that the applicant has made out a case for grant of bail. Resultantly I admit the applicant to bail subject to his furnishing surety in the sum of Rs.200,000 (Rupees Two Lac) and P.R. Bond in the like amount to the satisfaction of trial Court.
14. ' Criminal Bail Application No. 980 of 2007 stands disposed of.