' SHAHID ANWAR BAJWA, J.--F.I.R. No,489 of 2009 was registered at Police Station Peerabad on 13-8- 2009 under section 6/9(c) of the Con0c trol of Narcotic Substances Act, 1997 (hereinafter referred to as "the Act of 1997"). Complainant was an A.S.-I. It was stated in the F.I.R. That while on patrolling at about 0030 hours he found two persons in a suspicious condition, who when tried to be apprehended, one person threw a plastic bag on the ground and succeeded to fled away while the other was apprehended, who on inquiry disclosed his name as Pervez Khan, the present applicant.
At that time it was night, therefore, no private person was available. Therefore only police official conducted search of the applicant and recovered from Nefa of his Shalwar black colour plastic packet containing Charas weighing 1200 grams on which word "Coffenoir" was written and from the plastic bag thrown by his companion recovered Charas weighing 370 grams. 10/10 grams sample were taken from each packet and were sent to Chemical Examiner.
2. Bail application was moved in the Court of Special Judge (C.N.S.) Clifton Karachi which application was dismissed vide order dated 29-8-2009. Learned counsel for the applicant made the following submissions:--
(a) That arrest in this case was made by A.S.-I. Under section 21 of the Act of 1997. A.S.-I. Is neither competent to arrest nor competent to conduct search.
(b) That quantity stated to have been recovered from the applicant is 1200 kgs. Which is a borderline amount and therefore this case should be treated as a case under section 9(b) of the Act of 1997 whose punishment is seven years and therefore does not fall within the prohibitory clause of section 497, Cr.P.C.
(c) Only 10 gram sample was taken for chemical analysis. Entire quantity should have been sent for the said purpose.
(d) It is not stated in F.I.R. As to how quantity was weighed how sample was sent for analysis and then arrest was made.
(e) Neither any purchaser has been arrested from the spot nor there is any private witness. In support of the contention learned counsel for applicant relied upon order dated 12-6-2009 passed by this Court in Criminal Bail Application No,500 of 2009 (Ubaidullah v. The State) Sohail alias Gang v. The State 2009 PCr.LJ 315, Abdali Shah v. The State PLD 2008 Kar.57, Dila Baz Khan v. The State 2008 PCr.LJ 1437, Muhammad Shahid Chirago v. The State 2008 MLD 442, Muhammad Farrukh Khan Zai v. The State 2008 MLD 608, Sartaj v. The State 2008 PCr.LJ 361, Inayat Ullah v. The State 2006 PCr.LJ 840.
3. Learned Assistant Prosecutor-General stated that it is recorded that police party took out spring balance and with the same they weighed the quantity of contraband. She further stated that samples were sent vide letter, dated 16-8-2009 and were received by Chemical Examiner on 18-8- 2009. She pointed out that incident occurred on 13-8-2009. On 14-8-2009 there was holiday and therefore letter was prepared on 16-8-2009. She relied upon Muhammad Yagoob v. The State K.L.R.
2005 Criminal cases 342 and Fida Jan v. State 2001 SCMR 36.
4. I have considered the submissions made by the learned counsel. I have also gone through record as well as case-law cited by law the learned counsel.
5. First ground urged by learned counsel for applicant was that search was made by A.S.-I. And according to the learned counsel under section 21 of the Act of 1997 it may not be done by anyone below the rank of Sub-Inspector. Reliance has been placed in this regard by learned counsel for applicant on Abdali Shah's case (supra). This case does not refer specific provision of section 21 and limitations contained in that provision were not noticed by the Court. Section 21 of the Act 1997 is in the following words:-- "21 Power of entry, search, seizure and arrest without warrant. ---(1) Where an officer not below the rank of Sub-Inspector of Police or equivalent authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any arcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may-
(a) enter into any such building, place, premises or conveyance;
(b) break upon any door and remove any other obstacle to such entry in case of resistance;
(c) seize such narcotic drugs, psychotropic substances and controlled substances and other materials used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act and any document other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and detain, search and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under subsection (1), the officer referred to in the subsection shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer."
6. Bare reading of section would indicate that it covers cases where contraband substances is kept or concealed in building, place, premises or conveyance." It has no applicability where upon personal search of a person the contraband has been recovered. Obviously, section itself says that when the material is kept in a building, place, premises or conveyance. It cannot be extended to include the cases of a person who is carrying contraband substances on his person, it would be defeating entire scheme of law to say if a person is found going about with any quantity of narcotic substances but since Sub-Inspector is not available nobody can take action against him.
Therefore, submission of learned counsel that recovery from the person of applicant is in violation of section 21 of the Act of 1997 is misconceived.
7. Second submission by learned counsel is that since quantity allegedly recovered was 1200 grams, it was a borderline case between sections 9(b) and (c) of the Act of 1997 and benefit if any, even at the bail stage, must be, given to the accused. Learned counsel relied upon unreported order of this Court passed in Criminal Bail Application No,500 of 2009 Ubaidullah v. The State where quantity recovered was 1200 grams. And it was observed that since quantity of Charas was only 1200 grams having marginally exceeded the limit of 1000 grams, therefore it was a borderline case.
In Dila Baz Khan's case quantity was said to be 1675 grams of Charas.
8. With respect to the honourable Judge who authored the order in Ubaidullah's case I do not think that 20 per cent can be treated as marginal. It would probably be reasonable to treat as marginal an amount between upto to 10 per cent but 20 per cent is significant and not marginal. In Muhammad Yaqoob's case quantity recovered was one and half Kgs. Of Charas and it was held that it falls within prohibitory clause. It may be mentioned here that order in Muhammad Yaqoob was passed by Division Bench but of Lahore High Court. Therefore, in my opinion upto 10 per cent can be treated as marginal but in present applicant's case it is beyond that. C If 20% treated marginal it would amount to modifying the law itself. Ground is, therefore not available to the applicant.
9. Third ground urged by learned counsel was that only 10 grams was sent to Chemical Examiner while whole quantity should have been sent. In Muhammad Farrukh Khan Zai's case it was held that since total quantity recovered is not examined it would not be presumed that samples were taken out from each and every bag. Alleged recovery 2.5 Kgs. Of heroin was effected from 265 leather belts in the form of small bags, total weight was 54.400 kilograms was recovered out of which 50 grams was separated and was sent for chemical examination. In Sartaj's case it is alleged that applicant had taken Charas to his house. After obtaining search warrant house was raided and from his possession a plastic bag was recovered which led to recovery of Charas Garda weighing 1 Kg. And Charas Pukhta weighing 3 Kgs. Samples were sent to Laboratory. Although, 5/5 grams samples were separated and sent to FSL on 21-5-2007, all the four samples from the whole contrabands were held to have created doubt. The cases are distinguishable. In one case there was 265 belt and it is not clear as to from which belt sample was taken. In second case there were two kinds of Charas. In the present case there are two packets and separate sample for each packet were taken. It is an accepted cannon in statistical analysis and in sampling theory that for a homogenous population (or for homogenous quantity) any quantity of sample would be representative of the entire population or quantity. All of us know that when mother cooks rice she just picks one grain from the pot to come to the conclusion whether rice has been properly cooked or not. That one grain since it is contained in a pot of homogenous population is representative of all there is in the pot. Therefore, there is nothing wrong if small but reasonable quantity is taken as sample rather than entire amount.
10. As far as 4th contention of learned counsel that it is not stated that as to how quantity was weighed. Learned Assistant Prosecutor-General has pointed out from the documents where it is stated that from investigation bag spring balance was taken out and quantity was weighed.
11. Next ground that was urged by learned counsel for applicant was that although the arrest took place on 13-8-2009 but sample was sent on 18-8-2009. I have already pointed out that 14-8-2009 was a holiday. Letter was prepared on 16th and sample was received in the Laboratory on 18th August, 2009. Reliance was placed on Sohail alias Gang's case. Although in this case it was held that inordinate delay in sending sample to Chemical Examiner without just and sufficient explanation would be considered for grant of bail. Report is not clear that how much was the delay.
In Shahid Chirago's case delay in sending sample was 11 days, therefore, these cases are clearly distinguishable. In Inayat Ullah's case samples for 15 days after registration of case was received by Laboratory. It was observed that under Control of Narcotic Substances (Government Analysts)
Rules, 2001 sample should be sent within 72 hours and in violation it can be held to make case against accused of further enquiry. But in the present case during the between for sending report and recovery 2 days were holidays.
12. Lastly, learned counsel for applicant argued that no purchaser has been arrested and there is no private witness. In support of his contention he relied upon Sohail alias Gang's case. In that case allegation was that accused was found selling contrabands. But herein no such allegation exists. It is not stated that applicant was selling contrabands.
13. As far as private witness is concerned, in F.I.R. Police has already stated that it was in the middle of night and no private person was available there.
14. Above discussion leads to me to the conclusion that no case for bail has been made out.
Criminal Bail Application Nos.1036 of 2009 is, therefore, dismissed.
' Needless to say that trial Court is required to proceed with trial expeditiously. Needless to say also that whatever is stated above shall in no way influence the trial Court while it decides the matter.