SYED SAEEDUDDIN NASIR, J.---Through this order, I intend to dispose of instant bail application arising out of crime No,01 of 2015, under sections 9(c), C.N.S. Act, 1997 of PS Budhapur, District Jamshoro.
2. The allegation against the applicant is that on 16-02-2015 at 1630 hours, the police of PS Sehwan, during patrolling on spy information recovered charas weighing 1500 grams from the possession of applicant; which allegedly, as per police, the applicant was possessing for the purpose of selling.
3. Learned counsel for the applicant, inter alia, argued that there is no reasonable ground to believe that the applicant has committed the alleged offence; the applicant is innocent; the prosecution story is false, fabricated and concocted and highly unbelievable and without any independent or corroborative piece of evidence. The learned counsel further contended that the place of incident is thickly populated area but no private person was cited as witness of the alleged recovery of charas even no efforts were made to call any private person to act as mashir of the alleged recovery. He further contended that the instant case is of borderline between clauses (b) and (c) of section 9 of Control of Narcotic Substances Act, 1997. The PWs are interested and are police officials, as such, there is no likelihood to tamper with the prosecution case, if the applicant is released on bail. Since the challan has been submitted, therefore, the applicant/accused is no more required for further investigation. Hence, this is a case of further inquiry into the guilt of the accused and falls within the meaning of section 497(2), Cr.P.C.
4. Learned A.P.G. Sindh appearing for the State has, admitted the case to be of borderline between the clauses (b) and (c) of section 9 of Control of Narcotic Substances Act, 1997, inasmuch as only 1500 grams of charas has been recovered from the possession of the accused, therefore, raised no objection to the grant of bail to the accused.
5. I have heard the learned counsel for the applicant as well as learned A.P.G. Sindh for the State and perused the material available on record.
6. It is settled law that at the bail stage deeper appreciation of evidence cannot be gone into and only it is to be seen as to whether applicant is prima facie connected with the commission of offence or not. It is an admitted position in view of material available on record that only 1500 grams of charas was allegedly recovered from the applicant. It A has been consistent view of the superior Courts that in cases where recovery of narcotic substance does not exceed the limit between 900 to 1500 grams the case being of borderline between clauses (b) and (c) of section 9 of Control of Narcotic Substances Act, 1997, therefore, invariably in all cases applicants have been admitted to bail. In this regard, guidance can be taken from the cases of `Ayaz v. The State' (2011 PCr.LJ 177), `Taj Ali Khan v. The State' (2004 YLR 439), Rayasat Ali v. The State' (2005 YLR 1862), `Mahboob Ali v. The State' (2007 YLR 2968), `Gulab Hussain v. The State' (2009 YLR 189), `Gul Hassan Dero v. The State' (2000 PCr.LJ 657) and 'Pervaiz Ahmed v. The State' (PLD 2008 Karachi 14).
7. In the case of Ayaz (supra) learned Single Judge of this Court has observed as under:- "It has been consistent view of the superior Courts that in cases where recovery of substance does not exceed the limit between 900 to 1500 grams it has been held by the superior Courts that the case being of borderline between clauses (b) and (c) of section 9 of Control of Narcotic Substances Act, 1997 and invariably in ail cases applicants have been admitted to bail."
8. In the case of Rayasat Ali (supra) Division Bench of this Court has held as under:- "---S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)--- Bail, grant of---Further Mashirnama of recovery and FIR., showed that 1100 grams of Charas were recovered from possession of accused, while according to Chemical Examiner's Report, net weight of entire Charas was 978-grams and no explanation was available for discrepancy of 122 grams Charas--- Delay of 17 days occurred in sending the sample to Chemical Examiner and no explanation was given for said delay---State counsel had no objection if bail was granted to accused---Case against accused being bf further inquiry, he was admitted to bail... "
9. In the case of Gulab (supra) learned Single Judge of Peshawar High Court while dealing with the discrepancy in weight of recovered substance observed as under:- "The charas recovered is 1200 grams which by margin exceed 1000 grams. The court while seized of the bail application has also to keep in mind the maximum sentence likely to be awarded to the accused."
10. In the case of Gul Hassan Dero (supra), Full Bench of this Court has held as under:- "---S. 497(2)---Control of Narcotic Substances Act (XXV of 1994 Ss.9 & 51---Bail, grant of---Case of accused fell under 5.9(c) of the Control of Narcotic Substances Act, 1997 as the quantity of narcotic substances recovered from him exceeded one Kg. And did not exceed 10 Kgs.---Vast difference existed in alleged recovery of narcotics from the accused as per difference existed in alleged recovery of narcotic from the accused as per case of the Prosecution and the one shown by the Chemical Examiner in his report---Arrest of the accused in the case also needed serious consideration which could not be resolved without recording evidence---Embargo on grant of bail contained in 5.51(1) of the Control of Narcotic Substances Act, 1997 did not apply to the case of accused and the allegations made against him required further enquiry as contemplated by 5.497(2), Cr.P.C.---Accused was admitted to bail in circumstances."
11. Similarly in case of Mehboob Ali (supra) the learned Division Bench of this Court has observed as under:- "The contraband charas weighing 1010 grams has been recovered from the possession of applicant during the raid. The quantity of 1010 grams marginally exceeds the limits of thousand grains, therefore, a borderline case in between clauses (b) and (c) of section 9 of Control of Narcotic Substances Act, 1997. "
12. In the case of Pervaiz Ahmed (supra), the learned Single Judge of this Court has observed as under:- "Since only one slab/patti of charas was separately sent for the chemical analysis report, which weighed one kilogram, the chemical report would be conclusive only to the extent of one kilogram of charas. The question whether the entire recovered substance is covered by the definition of narcotics would be properly determined at the stage of trial, after sufficient evidence is brought on record. However at present stage, as a result of tentative assessment, the chemical analysis report to the extent of only one slab/patti weighing one kilogram, prima fade may constitute an offence under section 9(b), C.N.S. Act, 1997, which is punishable to the extent of seven years. "
13. In the case of Taj Ali Khan (supra), the learned Single Judge of Peshawar High Court observed as under:- "Not only because the quantity of 500 grams marginally exceeds the upper limit of 1000 grams, therefore, being a borderline case between clause (b), and (c) of section 9 of Control of Narcotic Substances Act, 1997. "
14. Moreover, no private witnesses have been associated and there is no private person who signed the mashirnama of arrest and recovery. Prosecution has not claimed that the applicant has been previously involved in same nature of the cases. The applicant has been in continuous custody since the date of his arrest and is no more required for any purpose of investigation. No useful purpose would be served if the applicant is kept behind the bars for an indefinite period.
15. In view of above, the present case appears to be borderline case, which attracts the provision of clauses (b) and (c) of section 9 of C.N.S. Act, 1997, the benefit of such discrepancy is to be extended to the present applicant, hence, the case of applicant is one of further inquiry as contemplated within the definition of section 497(2), Cr.P.C. Accordingly, by a short order dated 05-06-2015, I had admitted the present applicant to bail, subject to his furnishing solvent surety in the sum of Rs,100,000/- (One hundred thousand) and PR Bond in the like amount, to the satisfaction of trial Court and these are the reasons for the same.
16. It is made clear that the observations made hereinabove being tentative in nature, shall not prejudice the case of either party.