ZAFAR AHMED RAJPUT, J.---Through instant Criminal Bail Application under section 497, Cr.P.C., the applicant/accused seeks post-arrest bail in case FIR No. 27 of 2014, registered at Police Station City, Jacobabad, under section 9(c) of the Control of Narcotic Substances Act, 1997 (herein after referred to as the ("Act of 1997")). Earlier to it, application for grant of bail moved by the applicant before the learned. Sessions Judge, Jacobabad being Cr. Bail in CNS Case No.05 of 2014, was dismissed, vide order dated 14.04.2014.
2. Briefly stated facts of the case are that on 16.03.2014, at 2230 hours. SIP Samandar Khan of P.S. Jacobabad lodged the FIR on behalf of the State alleging therein that while he was on snap checking along with his sub-ordinate staff at Quetta road Eid Gah Police Post Jacobabad at 2030 hours, they stopped a Toyota Corolla car coming from Quetta road. They saw the applicant driving the car and three other co-accused persons, namely, Mumtaz Ali, Raj Kumar and Mst. Aasha sitting in the car. On checking they recovered from the car one black coloured bag containing 22 packets and one grey coloured bag containing 21 packets of green and black colours, which were opened and found having each packet 2/2 slabs of charas; each slab weighed 1 kilogram, total 43 kilograms, out of which one packet from each bag was sealed for chemical analysis, while remaining charas was separately sealed. Such Mashirnama was prepared at the spot and thereafter the accused persons along with case properties were brought at police station where case was registered against them.
3. Heard the learned counsel for the applicant, learned D.P.G., and perused the material available on record.
4. Learned counsel for the applicant has contended that nothing incriminating has been recovered from the possession of the applicant and the alleged charas has been foisted upon him by the police for ulterior motive as the applicant was plying the taxi, hired by the coaccused/passengers and he was unaware of the fact that the coaccused/passengers were carrying charas in their luggage. He has further contended that the complainant was inimical to the applicant as, earlier to this incident, he had hired the taxi of the applicant but did not pay him the fare and being annoyed on demand thereof he falsely implicated the accused in the instant case. He has also contended that the police did not attempt for the compliance of section 103, Cr.P.C., and since the mashirs of recovery are police officials, no credibility can be attached to allege recovery of contraband charas from the possession of applicant. Relying on the case of Pervez alias Gidari v. The State (2013 PCr.LJ 635) and Ghulam Mustafa alias Mushtaq Ali v. The State (2013 PCr.LJ 860) the learned counsel has added that the sample of charas has been sent to chemical examiner for analysis with delay of three days and belated dispatch of sample has vitiated the entire proceedings against the applicant; therefore, he is entitled for grant of bail.
5. Per contra, the learned D.P.G. While opposing the grant of bail to applicant/ accused has maintained that a huge quantity of charas has been recovered from the car being driven by the applicant and police has also recovered from him the running page of the document of the car. He also maintained that the applicant did not produce any proof regarding his animosity with the complainant and the prosecution's witnesses have fully implicated the applicant in the case in their statements recorded under section 161, Cr.P.C.
6. The applicant is facing charge of possessing 43 kilograms charas, which is a huge quantity and punishment provided under clause (c) of section 9 of the Act of 1997 for possessing narcotic drug, psychotropic substance or controlled substance, exceeds from 1 kilogram, is either for death, imprisonment for life or for a term which may extend to fourteen years with fine, which may be up to one million rupees. Section 51 of the Act of 1997 deals with the restriction for grant of bail in respect of certain offences. It is divided into two parts, under first part the accused is not entitled to be released on bail, if he is involved in an offence punishable with death and the provisions of sections 496 and 497, Cr.P.C. Have been specifically excluded. Under second part if accused is involved in an offence which is punishable with less than death, he is not normally required to be released on bail unless the Court is of opinion that it is a fit case of grant of bail subject to condition of furnishing security of substantial amount. Under this part, the application of provisions of sections 496 and 497, Cr.P.C., are not excluded. However, it is also a celebrated principle of law that when a case against the accused is of further, enquiry then the embargo contained in section 497, Cr.P.C. Barring grant of bail to the applicant does not apply. On the same analogy the bar contained in the section 51 of the Act of 1979 would not be applicable in a case of possession and recovery of narcotics if the evidence in possession of the prosecution prima facie does not make out a case punishable with death.
7. Looking to the case of the prosecution against the applicant, I find that prima facie 43 kilograms charas has been recovered from the car which was in possession of the applicant at the time of recovery. The recovered charas was sealed at the spot in presence of two Mashirs after taking out one packet from each bag (total two packets, each containing 2/2 slab of 1 kilogram each), as sample for chemical analysis; that was sent to chemical examiner and his report in this regard is in positive.
8. I am not persuaded by the arguments of learned counsel for the applicant for grant of bail. For the reasons, the applicant has failed to bring any evidence on record showing his previous animosity with the complainant. The contention of learned counsel with regard to the noncompliance of section 103, Cr.P.C. Is also misconceived for the reasons that section 25 of the Act of 1997 has categorically excluded the application of section 103, Cr.P.C. To the searches made under the Act of 1997 and in presence of a special law regarding the search, general provisions would not prevail. Even otherwise, the counsel for the applicant has not denied the recovery of charas from the car in the possession of applicant but pleaded that the same were recovered from the luggage of co-accused/passengers, such plea of applicant can only be determined at the trial.
9. As regard delay of three days in sending the sample to Chemical Examiner, it may be observed that under Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001 samples are to be dispatched to Chemical Examiner for analysis within 72 hours of the seizure. In the instant case, the charas was allegedly recovered on 16.03.2014, at 2030 hours, while the samples were dispatched to Chemical Examiner on 19.03.2014; thus it was sent within prescribed time of 72 hours. Even otherwise the delay per se in sending samples to Chemical Examiner is of no significance unless grave prejudice is caused to the accused. The cases of Pervez alias Gidari and Ghulam Mustafa (supra) are distinguishable so far the, facts of instant case are concerned, as in the former case the bail was granted considering the fact, amongst others, of sending the sample to Chemical Examiner with delay of six days and in the latter case the accused was acquitted on the grounds, including the ground of sending the sample for examination with delay of four days.
10. The applicant has been found in possession of a huge quantity of charas, which can have devastating effect on the society and from the tentative assessment of evidence; the case of applicant does not call for further enquiry as envisaged under subsection (2) of section 497, Cr.P.C.
I, therefore, dismiss this Criminal Bail Application.
11. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicant on merits.