SHAH JEHAN KHAN AKHUNDZADA, J.---Arifullah petitioner facing the charge under section 9 Control of Narcotic Substances Act, 1997 vide F.I.R. No,802 dated 6-9-2012 registered at Police Station, Pishtakhara District Peshawar was refused bail by the learned Additional Sessions Judge- IV, Peshawar vide his order dated 20-9-2012. Now he has approached this Court for the same relief.
2. According to the contents of the report in the shape of Murasila, on a tip of information that huge quantity of contraband Charas would be smuggled from tribal territory to Peshawar in a Potohar Jeep, on 6-9-2012 at 1500 hours Dawar Khan A.S.-I. Along with other police contingent had laid a Nakabandi at Ring Road near Ilyas Shaheed Road when in the meanwhile a Potohar Jeep bearing Registration No,CL-829/Chitral blue colour came there which was stopped for checking. The driver disclosed his name as Arifullah son of Muhammad Shafique resident of Kanday Payan Pishtakhara.
On search he recovered different packets of Charas total weighing 9 Kg and 700 grams from secret cavities of the vehicle. He arrested the accused and .a case under the above section of law was registered against them. The said A.S.-I. Also separated 5/5 grams from each packet of Charas and for analysis through FSL while the remaining stuff was sealed into separate parcel.
3. Learned counsel for the accused-petitioner without touching the merits of the case contended that in the case in hand Dawar Khan A.S.-I. Who is below the rank of Sub-Inspector has allegedly seized the contraband, arrested the accused, registered a case against the accused-petitioner and also investigation the case which is sheer viblation of the mandatory provision of sections 21 and 22 Control of Narcotic Substances Act, 1997, therefore, after placing reliance in a case "Nasrullah v. The State" reported as (PLD 2011 Peshawar 152), he submitted that in view of the above violation of the provisions of law, case of the accused-petitioner requires further probe and on this score alone he is entitled to the concession of bail. The above proposition of Law could not be controverted by the learned State counsel. -
4. Since violation of the mandatory provisions of Control of Narcotic Substances Act, 1997 has been shown to be involved in the case in hand, therefore, I restrict myself to discuss as to whether the local police who registered the case, against the accused petitioner has violated the mandatory provisions of sections 20 to 22, 25, 26 and 72 of CNSA, 1997 or not.
5. Perusal of the record shows that A.S.-I. Dawar Khan on receipt of information that huge quantity of contraband Charas would be smu ggled to the settled area from tribal territory in a Potohar Jeep bearing Registration No, CL-829/Chitral; thus on 6-9-2012 at 1500 hours he laid a picket at Ring Road near Ilyas Shaheed Road and he intercepted the said vehicle and stopped it for checking. The driver disclosed his name as Arifullah son of Muhammad Shafique resident of Kanday Payan Pishtakhara. On search of the said Jeep he recovered different packets of Charas total weighing 9 Kg and 700 grams from secret cavities of it. He then arrested the accused and drafted Murasila to that effect on the basis of which case F.I.R. No,802 dated- 6-9-2012 was registered at Police Station, Pishtakhara under the above section of law. It further transpires from the record that material investigation in this case in the shape of seizure, its weighing, and packing and sealing it into parcel, separation of some quantity of it for analysis through FSL has been carried out by A the said A.S.-I. Hence in this view of the matter contention of the learned counsel for the accused-petitioner that entire action taken by the said A.S.-I. By way of registration of a case under the provision of Control of Narcotic Substances Act, 1997 and its investigation by him from its inception to the end is violative of the law on the subject, seems forceful. Hence in view of the above discussion, keeping in view the principle laid down by full bench of this Court in (PLD 2001 Peshawar 152) mentioned in the earlier part of this order, the case of the accused-petitioner is one of further inquiry entitling him the concession of bail under subsection (2) of section 497, Cr.P.C.
6. Resultantly, this bail application is accepted and the accused petitioner is ordered to be released on bail provided each of them furnishes bail bond in the sum of Rs,2,00,000 (Rupees two Lac) with two sureties each in the like amount to the satisfaction of the Judicial Magistrate/trial Court. The above are the reasons of my short order announced on 5-10-2012.