ALI BAIG, J.---This petition under section 497, Cr.P.C. has been moved by the petitioner namely Hidayat Ali for grant of post arrest bail in case FIR No, 01/2020 dated 05-01-2020 under section 4/5 Explosive Substances Act, 1908, registered at Police Station Kachura District Skardu.
2. Succinctly, allegation against the petitioner/accused as narrated in the FIR is that on 05-01-2020 at 02:30 hours, a Hiace van bearing registration No. NCP Gilgit 0090 reached at Kachura Police check post driven by the petitioner/ accused. The police on duty at the Kachura barrier searched the vehicle and had recovered 10 bags WABONITE from under the seats of vehicle and each bag was containing 25 Kg of WABONITE and total quantity was 250 K.Gs and was taken into possession by the police, two sealed bags containing 100 packets of detonators and each packet containing 100 detonators total 10,000/- detonators were also recovered from roof of the aforesaid vehicle. Accordingly on the written murasila/letter of H.C. Fida Hussain, In-charge Police Check Post Kachura registered a criminal case/FIR against the above named petitioner at Police Station Kachura, District Skardu.
3. The learned counsel for the petitioner has contended that the petitioner/accused is innocent and has falsely been implicated in the instant case by local police with mala fide intention. The learned counsel for the petitioner/ accused has further argued that the petitioner is driver by profession and one Niamat Hussain had delivered the aforesaid items to him to be transported to Skardu from Gilgit and the petitioner had no conscious knowledge regarding explosive and detonators allegedly recovered from the vehicle of the petitioner/ accused, therefore the petitioner is entitled for concession of bail. The learned counsel for the petitioner has further argued that co-accused of the present petitioner namely Niamat Hussain has obtained license for purchase of explosive material and he had purchased the disputed explosive material from one Haji Gulam Hussain and Sons at Gilgit and he had sent the same to Skardu in the vehicle of the petitioner, thus the case of the petitioner requires further inquiry and the petitioner is entitled for concession of bail. The learned counsel for the petitioner further argued that the prosecution has also violated mandatory provisions of 103 Cr.P.C. while taking into possession of the explosive material from the vehicle of the petitioner.
4. On the other hand, the learned Dy. Advocate General vehemently opposed this petition by contending that the petitioner is directly charged in the promptly lodged FIR. The learned Dy. A.G. has further argued that offence under sections 4/5 of Explosive Substances Act, 1908 falls within the ambit of prohibitory clause of section 497, Cr.P.C. The learned Dy. A.G. further argued that the explosive material has been recovered from the possession of the petitioner, thus the petitioner is not entitled for concession of bail.
5. I have carefully considered arguments advanced by the learned counsel for the petitioner as well as Dy.
Advocate General and perused the relevant record.
6. From the perusal of record it transpires that one Niamat Hussain had valid license for purchase of explosive materials and he had purchased the explosive material from one Haji Ghulam Hussain and sons, Commercial Explosive and Arms Ammunition Dealer Khazana Road Gilgit. The above named dealer has allegedly handed over the same to the petitioner/accused to transport the same to Skardu as evident from the record. The above named co-accused of the petitioner has reportedly been arrested by police and he was committed to judicial lockup at Skardu. In the instant case, there is nothing on record to prove that the petitioner had any knowledge of the presence of contraband explosive in packed/bags which were delivered to him by one Niamat Hussain and it will be determined at the trial that who is owner and purchaser of contraband explosive material, thus matter requires further inquiry as contemplated under sub-section (2) of section 497, Cr.P.C.
7. Moreover, under the provisions of section 103, Cr.P.C. before making a search the police shall call upon two or more independent witnesses i.e. inhabitants of the locality in which the place to be searched is situated. But, in the instant case, the police have violated the aforesaid mandatory provisions of law as no inhabitant/witness of the locality was associated the police at the time of search of vehicle despite the fact that independent/private witnesses/passengers were present in vehicle which makes recovery doubtful and entitled the petitioner for concession of bail.
8. Furthermore, bare reading of the section 4 of Explosive Substances Act of 1908 shows that in order to fall within the mischief of the said section malice and intention are sine qua non. There has to be mensrea in order to attract the provision of section 4 of the Explosive Substances Act of 1908. Similarly, section 5 of the Explosive Substances Act of 1908 proceeds on the premises that the offender has knowledge about the explosive substance in his possession which is prima facie lacking in the case of the petitioner/accused.
9. In view of the foregoing reasons and circumstances, I found the petitioner to be entitled for concession of bail.
Accordingly, I accept this bail petition and petitioner is admitted to post arrest bail subject to his furnishing bail bonds sum of Rs.300,000/- (three lacs) with two sureties each in the like amount to satisfaction of the trial court at Skardu or Judicial Magistrate on duty at Skardu. File.