Salim Khan accused-petitioner involved in case FIR No, 520 dated 09/06/2013 under Section 9-C Control of Narcotic Substances Act, 1997 registered at Police Station, Pishtakhara District Peshawar was refused bail by the learned Additional Sessions Judge-IV, Peshawar vide order dated 18/06/2013. Now he has approached this Court for the same relief.
2. Brief facts of the case are that on 09/06/2013 at 19.10 hours Sultan Sher ASI alongwith other police officials on receiving information that huge quantity of contraband Charas would be smuggled from tribal territory via ring road towards province of Punjab through Motor Car bearing Registration No, MA-612/Islamabd, he made a barricade at Ring Road near PAF Chowk, meanwhile the said vehicle came there which was stopped and its driver disclosed his name as Salim Khan son of Aslam Khan. On search of the vehicle six packets from its switchboard while 1/1 packets of contraband Charas from its four doors, total ten Kilograms were recovered. The said ASI also separated 5/5 grams from each packet of Charas 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 Sher Khan A "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 investigated the case which is sheer violation of the mandatory provision of Sections 21 & 22 Control of Narcotic Substances Act, 1997 and Article/Section 18 sub-clause (4) of Police Order, 2002.
He further submitted that the alleged recovery of contraband has been effected from the accused-petitioner on 09/06/2013 and sample whereof has been sent to the FSL for analysis but till date the said report is still awaited, hence he is entitled to the concession of bail on this score alone. Therefore, according to him -in view of the above violation of the provisions of law and the non-availability of the FSL report, case of the accused-petitioner requires further prob3, falling the case of the accused-petitioner within the ambit of sub-section (2) of Section 497, Cr.P.C. He placed relief on (PLD 2001 Peshawar 152) and (PLD 2013 Peshawar 32).
4. On the other hand learned counsel for the State strongly opposed the grant of bail to the accused-petitioner and contended that huge quantity of contraband Charas was recovered from the Motor Car driver by the accused-petitioner at the relevant time. Further submitted that the provisions of Sections 21 & 22 of the CNSA are directory and not mandatory in nature as no consequence of neglect to comply therewith has been mentioned in the Statute, therefore, the accused-petitioner is not entitled to the concession of bail on this ground.
5. Since violation of the mandatory provisions of Control of Narcotic Substances Act, 1997 and section/Article 18(4) of the Police Order, 2002 has been shown to have been committed in the case in hand, therefore, I would restrict myself to discuss as to whether the ASI concerned 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 and Article/Section 18(4) of Police Order, 2002 or not.
6. Perusal of the record shows that ASI Sultan Sher has arrested the accused-petitioner and has allegedly recovered contraband Charas. 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 the said ASI. Hence in this view of the matter contention of the learned counsel for the accused-petitioner that entire action taken by the said ASI 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) case of the accused-petitioner is arguable for the purpose of bail. Moreover, the recovery of the contraband Charas has been recovered from the accused-petitioner on 09/06/2013 which was sent to the FSL for analysis on the same day but till date the said report is still awaited therefore, it is not known that whether the alleged recovered substance is Charas or heroin or otherwise. Thus, on this score too case of the accused-petitioner requires further probe and falls it within the ambit of sub- section (2) of Section 497, Cr.P.C. which entitles the accused-petitioner to be given concession of bail.
7. Resultantly, the application in hand is accepted and the accused-petitioner is ordered to be released on bail provided he furnishes bail bonds in the sum of Rs,2,00,000/- (Rupees Two Lac) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate on duty. The sureties must be local, reliable and mean of means. The above are the reasons of my short order announced on 03/07/2013.