' MUNIB AKHTAR, J.---The present bail application arises out of F.I.R. No,4 of 2009 registered at Police Station, ANF, Sukkur on 19-5-2009 at 7-15 p.m., in respect of a crime stated to have occurred earlier the same day at around 4-30 p.m. The complainant in the case was S.H.O. Muhammad Muzamil of Police Station ANF Sukkur. The complainant stated that on 19-5-2009 a patrolling party, headed by him, was constituted for patrolling and detection of narcotics cases in the area of Naushehro Feroze. At around 4-10 p.m., when the party was near Halani bus stop a special informer/spy informed them that two alleged narcotics dealers, namely Riaz Hussain Shah and his brother, the present applicant, had prepared a program for moving a large quantity of narcotics from their house situated in Qazi Mohallah Halani to some other place, and that if action were to be taken immediately the drug dealers could be apprehended red handed. The complainant stated that since Court time was over, it was not possible to obtain a search warrant and that in any case, on the basis of information received, there was an apprehension that the drug dealers would be able to flee with the contraband unless immediate action was not taken. The police party, along with the special informer/spy, proceeded at once towards the location indicated by the latter and reached there at around 4-30 p.m. The complainant stated that they encircled the house indicated to them and asked the neighbours to act as witnesses, but they refused to do so out of fear of inviting the wrath of narcotics dealers. Therefore, the complainant nominated two members of police party (as identified in the F.I.R.) as witnesses and thereafter proceeded towards the house. The door of the house was opened on their knocking but as soon as the person opening it saw the law enforcement officers, he attempted to bar their entry. However, the police party managed to enter the house and apprehended the person who had opened the door, as also another person, who tried to run away while holding a bag made of white cloth. The two persons were questioned in the presence of Mashirs. The person who had opened the door gave his name as Syed Riaz Hussain Shah whereas the other person (the one holding the bag) identified himself as Zahid Hussain, i,e,, the present applicant. The men disclosed that they were brothers and when the bag held by the applicant was opened, it was found to contain 10 white plastic packets each containing Charas.
Each packet, upon weighing, was found to be one kg; thus, the bag contained a total of 10 kgs Charas. From each packets, 10 grams was separately sealed for chemical examination, and the remaining quantity sealed in the same bag from which recovery was made. Cash and other property as identified in the F.I.R. Was also obtained from a search of the persons of the two men and upon further search, a white nylon bag was also found which contained 28 white plastic bags, each containing one kg of Charas. A bag containing 2.5 kgs of opium was also found in the house.
Samples were taken from each of the bags containing Charas to be sent for chemical examination and the opium recovered from the other bag was sealed separately for the same purpose. On the foregoing basis, the two men were arrested for having committed offences under section 6 read with section 9 of CNS Act, 1997 and the F.I.R. Registered as above.
' Learned counsel appearing for the applicant argued his case essentially on legal grounds while placing reliance on case-law to which I will presently refer. His case for the grant of bail was that the provisions relating to search as prescribed by law had not been properly followed and that therefore the applicant was entitled to bail. He also submitted that the matter had been challaned and the charge framed, and thus the applicant was no longer required for investigation purposes.
He prayed that the applicant be enlarged on bail.
3. Learned SPP opposed the grant of bail. He submitted that all the relevant facts had been stated in the F.I.R. Itself and that the procedural matters referred to by learned counsel for the applicant were either substantively complied with, or were in any case directory in nature. He submitted that therefore even if the same had not been meticulously followed, that constituted a mere irregularity and not an illegality of such a nature as would vitiate the arrest of the applicant. He submitted that there was no enmity between the law enforcing personnel and the applicants and that a huge quantity of narcotics had been recovered from the house where the applicant had been found along with his brother, both of whom had been immediately apprehended on the spot. He also submitted that the matter was proceeding apace before the trial Court, and in the facts and circumstances of the case, the concession of bail was not warranted.
4. As noted above, learned counsel for the applicant placed reliance on a number of cases, which I will now consider. The first case is that reported as Muhammad Bilal v. The State 2009 M LD 335. In my view, this case is distinguishable on the facts as therein stated. The accused there was merely a student of the 8th class, who had been allegedly apprehended from a public place that was directly opposite the Peshawar bus terminal. The High Court observed that the place was not merely a public place but was always crowded with persons and that in such circumstances public witnesses ought to have been associated with the recovery proceedings. The Court noted that while the failure to do so was an irregularity in the facts of the case before it, the failure to observe the requirements was so relevant a factor that the Court was satisfied that bail ought to be granted to the accused. As is obvious, the facts of the present case are entirely different, since the two men accused here were apprehended from a private residence from which a huge quantity of narcotics was recovered on the spot in their presence.
5. The next case is Said Muhammad v. The State 2008 M LD 1275. This involved a police party stopping and checking passengers boarded on a bus. The accused, along with another person, were seated together and when searched were found to be in possession of a plastic bag which contained 2.5 Kg of Charas. It was held that independent witnesses such as the driver and conductor of the bus ought to have been associated with the recovery proceedings and failure to do so was found sufficient to entitle the accused to bail. There was also some delay in the sending of samples from the Charas recovered for the purposes of chemical examination. The facts of this case are clearly distinguishable from those at hand for the reasons already stated with reference to the first case.
6. The next case is the decision of this Court reported as Abdur Rasool v. The State 2009 PCr.LJ 558.
Here also on the basis of a tip-off, the accused was apprehended from a bus stop and found to be in possession of 2 Kgs of Charas. It may be noted that the Court specifically rejected a plea taken with regard to the irregularity in the recovery proceedings with reference to section 103, Cr.P.C.
Since, as observed by the Court, that provision did not apply to the cases under the C.N.S. Act by reason of section 25 of the latter statute. The reason why bail was granted was apparently that there had been a subsequent enquiry of the police investigation in the matter by the SPO of Lakhi Ghulam Shah which indicated that there may have been foul play on the part of the State complainant, namely Inspector Ali Bux and it was for this reason that bail was granted. This case is distinguishable from the facts of the present case since there is no such enquiry report available at the present time.
7. The main reliance placed by learned counsel for the applicant was on the decision of the Supreme Court reported as Sakina Bibi v. The State 2008 SCM R 1111. In that case as per the F.I.R.
Registered therein, the A NF had received spy information that the accused Sakina Bibi was doing narcotics business from her house and on this basis the house was raided, and accused (along with a boy) was found sitting in a room in the house handling Charas. On behalf of the accused it was contended that the raiding party had entered and searched the house without obtaining a search warrant, which was required under section 20 of the C.N.S. Act. In reply, it was contended on behalf of the State that section 103, Cr.P.C. Stood specifically excluded in narcotics cases, and therefore the failure to obtain a search warrant as required in terms of section 20 of the Act was merely an irregularity. The Supreme Court granted bail while observing that although it was correct that section 103, Cr.P.C. Was not applicable as per section 25 of the Act, but that did not mean that the requirement of obtaining a search warrant and prior permission before entering residential premises for purposes of search stood excluded. It was on this basis that the Court granted bail to accused Sakina Bibi. It will be seen that in Sakina Bibi, the information received by the ANF on the basis of which raid was conducted was simply, to the effect that the accused person could be found at her residence dealing with or handling Charas. In the present case, the nature of the information given by the informer (as expressly stated in the F.I.R.) was significantly different. The information given was to the effect that the accused and his brother were preparing to move a huge quantity of narcotics from their house to another place, and that if a raid was immediately conducted they could be apprehended with the contraband material. In this regard, it may be noted that section 21 of the C.N.S. Act, which deals with the power of entry, search, seizure and arrest without warrant, expressly provides in its subsection (1) as follows:-- "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 narcotic 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 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 open 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 confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the Commission of an offence punishable under this Act; and
(d) 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."
8. It will be seen that subsection (1) becomes applicable when the following conditions have been met:--
(a) The officer concerned must be not below the rank of Sub-Inspector of police or equivalent thereof.
(b) He must be acting either on the basis of (i) his personal knowledge or (ii) information given to him by any person.
(c) On the basis of foregoing knowledge or information, he must form an opinion that the proscribed narcotics substances have been kept or are concealed in any building or place or premises or conveyance, and that
(d) a warrant for the arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facilitating his escape.
9. In the present case, I am of the view that, prima facie, the conditions laid down in subsection (1) were clearly made out. The crucial difference between the facts of the case at hand and that in Sakina Bibi is that in the present case the secret information indicated that there was an imminent movement of narcotic substances and, prima facie, in such circumstances the complainant could and did form an opinion that imminent action was necessary and that any delay may enable the accused to either escape or otherwise deal with the narcotic substances in such manner as would take them beyond the purview of the law enforcement agencies. In Sakina Bibi on the other hand, there was no such information involved. Rather, the spy information had merely stated that the accused person could be found in her residence dealing with Charas. In other words, there apparently was nothing in the facts in Sakina Bibi as would have entitled the concerned officer there to form an opinion that the condition of subsection (1) of section 21 were applicable thus entitling him to conduct a raid without obtaining a search warrant. I am respectfully of the views that this is a material and crucial factual difference between the decision relied upon by learned counsel for the applicant, and the facts of the case at hand.
10. I am also of the view that since there is no allegation of any enmity between the ANF party which conducted the raid and searched the premises where the accused were found with a large quantity of narcotics, there does not prima facie appear to be any basis for the claim put forward by the applicant that the drugs were foisted on the applicant and his brother.
11. In view of what has been stated in the foregoing, I am satisfied that on the basis of facts as presently available on the record, the prosecution has succeeded in making out a reasonable case which prima facie connects the applicant with the possession of the huge quantity of narcotics substances, which constituted an offence under section 6 of the C.N.S. Act, and therefore, I am of the view that the applicant has failed to make out a case for grant of bail. Accordingly, this bail application is hereby dismissed. Needless to say the observations made in this order are of a tentative nature and only for purposes of this bail application. Nothing herein shall affect the determination of the facts at the trial or influence the trial Court in reaching its decision on the merits of the case.