1. ' ABDUL RAHSEED KALWAR, J.--- Inspector/S.H.O Habibullah Chand of Police Station, Hatri along with his subordinate police staff A.S.-I. Allah Bux, A.S.-I. Bashir Ahmed Mallah, PC Rascol Bux, P.C. Shoukat Ali, P.C. Imran Shah, left police station at 0600 hours; after keeping Roznamcha Entry No,34, for the purpose of search operation, in compliance of the order of superior officers. The police party conducted checking at Check Post Belani National Highway. They intercepted a Rickshaw coming from Matiari, at 0930 hours. Two persons were sitting on the back seat of the rickshaw and one person was driving it. These three persons, after stopping rickshaw on police signal, alighted and tried to escape away, but police succeeded in catching hold of two of them. One person threw away his plastic bag and succeeded in escaping away, but said abandoned plastic bag was secured by the police. This plastic bag contained five packets. The apprehended persons disclosed their names as Hakim son of Karim Bux Jamali and Riaz Lashari. From the possession of Hakim one plastic bag containing six packets was recovered and Riaz identified him as Rickshaw driver. From his possession another sac containing six packets was also recovered by the police. These packets were opened by the police; each packet contained one Kg. Slab of Charas. The apprehended accused told the name of third person as Sono son of Sakho Jamali, who had succeeded in escaping away. The total recovered Charas became 17 kilograms: The apprehended accused disclosed that they were transporting the Charas in Rickshaw of Riaz Lashari bearing Registration No,G-62524 for Mullan Dayo towards Hyderabad. 200 grams of Charas was separated from six packets recovered from applicant Hakim Jamali; while 200 grams of Charas was separated from six packets recovered from Riaz Lashari, Likewise 200 grams of Charas was separated from five abandoned packets of Sono Jamali. The samples were separately sealed and remaining Charas was separately sealed in presence of police Mashirs. The Mashirnama was prepared. Apprehended accused, recovered Charas and Rickshaw were taken into custody and brought at police station, where F.I.R was lodged under section 9(c) of C.N.S. Act, 1997 against the applicant and two other co-accused vide crime No,75 of 2008 at P.S. Hatri. The F.I.R was lodged at 1200 hours on 4-5-2008.
2. ' The applicant's bail plea did not find favour with the Court of Special Judge/Third Additional Sessions Judge, Hyderabad and his Criminal Bail Application Special Case No,26 of 2008 was dismissed vide order dated 26-9-2008, hence this bail application has been filed.
3. ' Learned Advocate for the applicant has argued that applicant is innocent and the whole substance has not been sent to chemicals examiner but only 200 grams of Charas has been sent to chemical examiner, therefore, at the most case can fall within the definition of section 9(a) of C.N.S. Act which is punishable with two years imprisonment and fine and does not fall within the prohibitory clause of section 497, Cr.P.C. The story is improbable and it is not mentioned that from which packet 200 grams of Charas was separated and sent to chemical examiner. He has also contended that samples were sent after 12 days to chemical examiner. He has relied upon case of Muhammad Nawaz v. State 2007 M LD 1846, Sikandar v. State 2008 YLR 351 and Mouladad alias Baba v, State 2005 M LD 452 (Karachi).
4. ' Learned State counsel Mr. Ansari has opposed the grant of bail saying that huge quantity of Charas has been recovered, samples were taken from whole quantity of the Charas. Offence falls within prohibition contained in section 497, Cr.P.C. The chemical examiner's report is in positive. The samples were received by the Chemical Examiner in sealed parcels. Substitution of the substance is impossible. No enmity or motive has been assigned against police for false implication of the applicant.
5. ' The contents of Mashirnama and F.I.R. Show that sample of 200 grams was separated from whole quantity of the recovered substance from the applicant. The fact and circumstances of the case- law relied upon by the applicant's Advocate as reported in 2007 M LD 1846 and 2008 YLR 351 are distinguishable from the facts and circumstances of present case. In case of Muhammad Nawaz v.
6. State 2007 M LD 1846, out of 10 bags of Charas only one Kg. Sample was sent to chemical examiner and no sample was taken from remaining case property. In second case-law of Sikandar v. State reported in 2008 YLR 351, three pieces of Charas were recovered which were weighed and total weight of Charas was of 1015 grams. Out of them, two pieces having weight of 1000 grams were sealed together and a piece of 15 grams was sealed separately as sample. In both the cited case laws the sample was not taken from whole quantity recovered from those accused whereas in the present case sample was separated from whole quantity. In present case tentatively applicant is found in possession of six Kg. Charas, resultantly it brings the case within the ambit of section 9(c) of C.N.S. Act. The alleged offence falls within prohibitory clause of section 497, Cr.P.C.
7. ' On this count, the applicant's plea as to grant of bail is not sustainable and as such applicant is not entitled for grant of bail.
8. ' So far as the question of sending the samples to the chemical examiner is concerned, the chemical examiner's report shows that three parcels each packet containing six greenish brown semi soft pieces, each piece covered with plastic were received by him. The net weight of each parcel was also found 200 grams. These three parcels were pertaining to accused Hakeem, Riaz and Sono with the signature of S.H.O P.S. Hatri, A.S.-I. Allah Bux Panhwar and A.S.-I. Bashir Ahmed.
9. Besides it, these three parcels were sent by S.H.O. Police Station Hatri to chemical examiner through A.S.-I. Ghulam Nabi, which were received by him on 16-5-2008. The Chemical Examiner's report shows that substance recovered from the accused was Charas. Rules 4 and 5 of Control of Narcotic Substances Government Analysts Rules, 2001 govern the mechanism of sending samples to government analyst. Both rules are as follows:-- "4. Despatch of sample for test or analysis.--- (1) Reasonable quantity of samples from the narcotics drugs, psychotropic substances or the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the officer in charge of nearest Federal Narcotic Testing Laboratory, depending upon the availability for test facilities, either by insured post or through special messenger duly authorized for the purpose.
(2) Samples may be despatched for analysis under the cover of a Test Memorandum specified in Form-1 at the earliest, but not later than seventy two hours of the seizure. The envelope should be sealed and marked "Secret Drug Sample/Test Memorandum."
5. Receipt in the laboratory and examination of sample with reference to Test memorandum.--- (1)
10. The sealed envelope, containing the samples, received in the laboratory should be carefully opened and given a distinct laboratory number.
(2) A separate register be maintained for narcotic drugs which may be further subdivided agency wise and the laboratory numbers should form a continuous series for each year.
(3) All samples shall be passed to the analyst the same day, who will then keep the same in the safe custody and will examine and record its, or their, weight in the Test Memorandum. He will compare the markings on the Test memorandums with the markings on the packages envelopes and will ensure that he test the relevant sample, and in no case, the analysis of a narcotic drug be delayed as the Courts may refuse to extend remand beyond fifteen days in the absence of a chemical report."
11. The learned State Counsel has failed to account for delay in sending the samples WI chemical examiner. Besides it, police papers are also silent as to why these samples were sent with such delay to chemical examiner. There is no explanation available with the State counsel to show that whether these samples were kept in safe custody or not and who was responsible for their safe custody for such long period of 12 days. In such situation, the dictum laid down in case-law cited by the applicant's counsel reported as Mouladad alias Baba v. State 2005 M LD 452 (Karachi) is attracted. The Division Bench of this Court consisting of Mr. Justice Wahid Bux Brohi and Mr. Justice Rahmat Hussain Jaffari have observed as under:--- "On perusal of the chemical analyzer's report dated 18-6-2004 it is noted that the chemical examiner received the specimen from P.C. Liaquat Ali under a letter dated 23-1-2004. Apparently the police dispatched the specimen to the chemical analyzer on 13-1-2004 and delivered it to P.C.
12. Liaquat Ali to hand it over to chemical analyzer. The chemical analyzer could have received the specimen on the same day or at the most on the next day but PC Liaquat delivered the same to chemical analyzer after 40 days. Where the specimen remaining during this period what was status of its safe custody, are the important factors yet to be explained, therefore, for the time being we are convinced that on this ground coupled with plea that the offence does not fall with in the prohibitory clause of section 497, Cr.P.C., the applicant deserves concession of bail."
13. There are number of authorities on the point of delay in sending samples to the chemical examiner, some of them are in favour of accused and some of them are against grant of bail. It is settled principle of law that in such a situation the Court should follow the view which is beneficial to the accused. The reliance is made on the case of Muhammad Nawaz v. State 2007 M LD 1846 at relevant page 1852, which reads as under:--- "We are also of the view that where conflicting views have been given by the Honourable Supreme Court then the one beneficial to the accused should be followed."
14. Due to delay in sending the samples to the chemical examiner by the police, a reasonable doubt has been created in favour of the accused at bail stage. Being fortified with the rules 4 and 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 and the case- law cited hereinabove, I am of the considered view that case is one of further inquiry has been made out in favour of the applicant and he is entitled for grant of bail, which is granted to him subject to his furnishing solvent surety in the sum of Rs,200,000 (Rupees two hundred thousand) and PR bond in the like amount, to the satisfaction of trial Court.