' MUHAMMAD KAMRAN KHAN MULAKHAIL, J.- --The applicant Abdul Qadeer son of Saleh Muhammad seeks bail in case F.I.R. No, 5 of 2013 registered with Police Station ANF Quetta in respect of offences under sections 9(c) of the Control of Narcotic Substances Act, 1997 ("CNS Act")
2. That the earlier application filed by the applicant/accused for grant of post arrest bail was rejected by the Special Judge, CNS Balochistan, Quetta vide order dated 14-10-2013.
3. The brief facts out of which this and the earlier application has arisen are that applicant/accused was apprehended on the date, time and place as mentioned in the aforesaid F.I.R. The ANF personnel upon a spy information stopped a Truck bearing No, TAB 425, Lasbella, wherefrom 155 sacks containing 4650 Kg of poppy straw were recovered. The applicant/accused being driver of the said vehicle along with other co-accused persons were apprehended at the spot and the F.I.R. Was lodged.
4. The learned counsel contended that despite having advance information the raiding party did not associate any private person during the course of arrest. He added that the Soobedar cannot be cited as complainant in Narcotics case, which being violative of substantive provision of law is not curable. He added that the F.I.R. Is silent about weighing of contraband item and the whole proceeding was carried out in the ANF police station. He finally urged that the case against the applicant/accused falls within the ambit of further inquiry. He also referred to the order dated 19-8- 2013 in Criminal Bail Application No,54 of 2014 whereby the co-accused was admitted to bail by this court. He maintained that keeping in view the principles of rule of consistency the applicant is also entitled to get the benefit of bail as on basis of same set of evidence his co-accused has already been admitted to bail.
5. Mr. Shaukat Ali Rakhshani, Special Prosecutor ANF strongly opposed the plea of bail and contended that applicant/accused was apprehended read-handed and no or mala fide has been shown for his false implication; therefore, the applicant is not entitled for grant of bail.
6. We have heard the learned counsel for the applicant/accused and the learned A.P.G. And have also gone through the record with their assistance. On perusal we have observed as under:--
(a) The applicant/accused was arrested by the ANF personnel on basis of spy information.
(b) The applicant/accused was apprehended along while driving the truck from which recovery of 4650 Kg of poppy straw was effected, meaning thereby that he was in conscious possession of the contraband item.
(c) The applicant/accused has failed to show any sort of personal enmity with the ANF personnel.
(d) The section 25 of the CNS Act clearly excludes the applicability of section 103 of the Criminal Procedure Code, 1898 ("Cr.P.C."), therefore for not associating any private witness cannot be termed as fatal to the prosecution case.
(e) The sections 21, 22 and 23 of the CNS Act are directory in nature and non-compliance thereof does not vitiate the trial, which being mere irregularity is curable under section 537, Cr. P . C .
(f) The applicant/accused being driver of the truck from which contraband items were recovered was in fact In-charge of the same and it was under his control and possession and knowledge that whatever material was available in the same has to be attributed to him. Reliance can be placed on the case of Sherzada v. The State 1993 SCM R 149 relevant portion whereof is reproduced here under: "10. It is true that the offence cannot be made out against any person unless he has the conscious possession of the contraband A article, but the knowledge is an inner quality which can only be inferred from the circumstances of the case. There is no hard and fast rule which can be laid down in this respect. It depends upon the circumstances whether the knowledge and conscious possession have been reasonably inferred from the facts proved on the record. In the present case the appellant was driving the car from Mardan and it is not believable that he had no knowledge of the articles found in the car. Had he taken the plea that the articles were found in the secret chambers and they were put by the owner without his knowledge, this point can be helpful to him, but in the instant case he did not take such a plea. He did not only deny the fact of recovery, but also claimed that the secret chambers were created by the Excise party itself. In such a case it cannot be held that he did not have the knowledge of the articles found in the car driven by him."
(g) The provision of section 9(c) of the CNS Act although provides that no officer below the Rank of Sub-Inspector of police would be authorized to exercise powers under this Act but the provision being directory in nature does not vitiate the trial. The sub-clause (d) of section 21 of the CNS Act, itself provides that where there is apprehension of concealment of evidence and possibility of escape of an offender, "such officer shall immediately arrest any person, whom he has reason to believe to have committed an offence punishable under this Act". Even otherwise the provision of section 21 imposes an embargo that the investigation of the case may not be authorized to an officer below the Rank of Sub-Inspector, whereas the provision of Cr.P.C. Shall mutatis mutandis apply to all proceedings under the CNS Act. The Cr.P.C. Being a regulatory law of criminal proceedings does not impose any restriction on becoming complainant of any case on anyone; therefore, benefit at bail stage cannot be extended on this ground.
(h) The challan of the case has already been submitted before the trial court; therefore any observation at this stage may prejudice the case of either side.
(i) The contention as regards to rule of consistency is of no assistance to the applicant/accused for the sole reason that the evidence against the applicant/accused is not at par with that of co- accused Muhammad Dawood who has been admitted to bail; therefore, the principle of rule of consistency cannot be pressed into service at this stage.
' In view of above observations we are not inclined to admit the applicant/accused to bail and the application is dismissed being devoid of merits.