Through this petition, petitioner Fida Hussain, seeks post-arrest bail in case F.I.R. No.661/2014 dated 19.12.2014, registered under Section 9(c) of the Control of Narcotic Substances Act, 1997, at Police Station Jatoi, District Muzafargarh.
2. The allegation against the petitioner as set forth in the F.I.R is that on receiving a spy information, the police constituted a raiding party, conducted a raid and arrested the petitioner having 12 K.G Bhang from his possession.
3. Heard. Record perused.
4. The contents of the FIR as well as the report of the Chemical Examiner do not reveal when the alleged substance was recovered was containing flowering or fruiting top. Similarly, it is nowhere mentioned that the Cannabis plant (Bhung) was with seeds or not which is against the provisions of Section 2 (d) of the Control of Narcotic Substances Act, 1997. Clause d of Section 2 of the CNSA is reproduced as under:- "cannabis (hemp): mean----
(i) Cannabis resin (charas) that is, the separated resin, whether crude or purified obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(ii) the flowering or fruiting tops of the cannabis plant (excluding the seed and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated or known; and
(iii) Any mixture with or without neutral materials of any of the above forms of cannabis or any drink prepared therefrom:"
It has been held in the case of "Fazeelat Bibi Vs. The State" (2007 YLR 3021) that unless conditions of any particular part of the said plant is mentioned, its recovery would be covered by the provisions of the Prohibition (Enforcement of Hadd) Order, 1979, the crux of the relevant portion is reproduced as under:- "---F.I.R memorandum of recovery and the Chemical Examiner's report did not specify as to whether the substance allegedly recovered from the possession of accused was the flowering or fruiting tops of the cannabis plant or not, as to whether the same excluded the seeds and leaves when not accompanied by the tops or not and as to whether resin had been extracted from the recovered substance or not----Requirements of Section 2(d) of the Control of Narcotic Substances Act, 1997, thus prima facie were not fulfilled so as to attract the provisions of the said Act---- Allegation against the accused regarding recovery of "Bhang" weighing 10 killograms from her possession fell within the scope of Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, which carried a maximum sentence of two years; RI.".
The same view was taken in the same case of "Muhammad Aslam & another Vs. The State" (2006 P.Cr.L.J. 1595) wherein it was held by the learned Division Bench of this Court that recovery of Bhang do not fall within the ambit of "narcotic drug" and uniformity followed by this Court in cases reported as "Ali Asghar Vs. The State, etc" (2015 P. Cr. R. 30), "Abdul Jalil Vs. The State" (2000 P.Cr.L.J 760), "Ghulam Hussain Vs. State & another" (PLJ 2015 Cr. C. (Lahore) 167 (DB)) and "Najabat Ali Shah Vs. The State" (2008 P.Cr.L.J. 750).
From bare reading of the above referred judgments reveals that Whether the contraband was a simple plant or not, it is to be determined by the trial Court during the trial after recording the evidence. In such a situation, Article 4 of the Prohibition (Enforcement of Hadd) Ordinance, 1979, prima facie, favours the petitioner. The contraband recovered neither described in the Control of Narcotic Substances Act, 1997 nor in the Prohibition (Enforcement of Hadd) Ordinance, 1979. In the circumstances, the case of the petitioner becomes one of further inquiry entitling him for the grant of post arrest bail. Resultantly, this petition is allowed and the petitioner is granted post-arrest bail subject to his furnishing fresh bail bonds in the sum of Rs.500,000/- (Rupees five hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.
5. It is, however, clarified that the observations made hereinabove are just tentative in nature and strictly confined to the disposal of this bail petition.