M. TABASSUM AFTAB ALVI, C.J. The captioned appeal has been preferred against the impugned order of Additional Sessions Judge/Special Judge CNSA, Muzaf farabad, dated 4th May, 2019, whereby in FIR No. 86/2019, post-arrest bail was declined to appellant-accused in offence under section 9(c) of The Control of Narcotic Substances Act, 2001, (hereinafter to be referred as CNSA).
2. The facts pithily stated are that on 01.05.2019, Syed Shujaa-ul-Hassan Gillani, SHO Police Station Saddar , Muzaf farabad, received spy information that in Tali-Mardi near the bank of river Neelum, a person was smocking, as well as, selling 'Charas' . Upon the aforesaid information, he, along with other police constables, arrived at the bank of river Neelum, where a white beard person, however , was captured and on query , he told his name Bashir Shah. He had a shopper in his hand and having reasonable doubt, the same was searched and 1000 grams 'Charas' was recovered from it, out of which, a parcel of 10 grams was prepared for chemical examination.
3. As per the aforesaid report, FIR No. 86/2019, was registered against appellant-accused, in offence under section 9(c), CNSA, at Police Station Saddar , Muzaf farabad, on 01.05.2019.
4. After registration of the aforesaid FIR, appellant-accused, applied for post arres t bail before Additional Sessions Judge/Special Judge CNSA, Muzaf farab ad, on 02.05.2019, which was declined, vide the impugned order dated 04.05.2019; hence, the instant appeal.
5. Raja Aftab Ahmad Khan, Advocate, appearing on behalf of appellant-accused, vehemently argued that his client is 73 years old person, who is behind bars for the last about 02 months. He pointed out that total 1000 grams 'Charas' was alleged to be recovered from his client, out of which, a meager amount of 10 grams was sent for chemical examination. The learned Counsel submitted that, all P.Ws. are police officials and no civilian witness was associated in recovery proceedings, which makes prosecution case doubtful. He added that challan of the case has been presented before the Court below and appellant-accused is no more required for further investigation; therefore, by accepting the instant appeal and setting aside the impugned order , he may be released on bail.
6. Conversely , Raja Ayyaz Ahmad, the learned Assistant Advocate General, representing the State, controverted arguments advanced by the learned Advocate for appellant-accused and submitted that accused is a professional smuggler of narcotics; therefore, no illegality or irregularity was committed by the Court below while declining him bail. The learned State Counsel submitted that admittedly challan of the case has been submitted before the competent Court of law; therefore, appel lant-accused has fresh ground to move an application before the Court below hence, craved for dismissal of the instant appeal.
7. We have given our dispassionate thought to the arguments addressed at Bar and cursorily gone through record made available.
8. The matter in hand pertains to bail and it is well settled principle of law that at bail stage deeper appreciation of evidence is not permissible, rather a bird eye view of the same has to be taken into consideration. However , at the same time, the Courts are not expected to pass a bail order in vacuum.
9. As per contents of FIR No.86/2019, on 01.05:2019, Syed Shujaa -ul-Hassan Gillani, SHO Police Station Saddar , Muzaf farabad, received spy information that in Tali-Mandi, near the bank of river Neelum, a person was selling and smocking `Charas' . Upon the aforesaid information, he, along with other police constables, arrived at the bank of river Neelum, where a white beard person, seeing police party , tried to evade; however , was captured and on query , he told his name Bashir Shah, who had a shopper in his hand and having reasonable doubt, the same was searched and 1000 grams ' Charas ' was allegedly recovered from him.
10. It is pertinent to observe here that under section 51, CNSA some conditions, in respect of certain offences, for refusing or granting bail have been postulated. In order to facilitate the matter , we would like to reproduce the aforesaid section as under:- "51. No bail to be granted in respect of certain offences. (1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death.
(2) In the case of other offences punishable under this Act bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of-bail and against the security of a substantial amount."
A bare reading of the aforesaid section reveals that no bail could be granted in respect of offences committed under CNSA and provisions of sections 496 and 497 of the Criminal Procedure Code, 1898, have expressly been excluded. However , an elbow room was left at the discretion of the Court under subsection (2) of section 51, CNSA, where statute speaks that bail should not normally be granted unless Court was of the opinion that it was a fit case for grant of bail. The words "fit case for grant of bail" used in statute would depend on facts of an individual case, which rather requires more favourable circumstances appearing on record in favour of an accused for grant of bail. As per prosecution, in the given case, 'Charas ' weighing 1000 grams was allegedly recovered from possession of appellant-accused. However , it is an admitted fact that challan of the case has been submitted before the concerned trial. Court. The appellant-accused was refused post-arrest bail before submission of challan and now, after investigation fresh material in shape of challan has been submitted before the competent Court of jurisdiction; therefore, he may file subsequent bail application on fresh ground, because it is well-settled that as soon as fresh material is brought on record of the Court, accused can file fresh application. The aforesaid view is fortified from a case reported as Muhammad Mushtaq and another v. The State [2007 PCr.LJ (AJ&K) 1542] , wherein, It was held by the apex Court as under:- "After going through the record of the case and comparative reading of the prosecu tion witnesses and other facts of the file, we propose to record the fining in respect of arguments advanced by Malik Muhammad Zaraat, the learned counsel for respondents and the Additional Advocate-General in the first place. Our own study reveals that no bar can be created for an accused to file repeated application for release on bail, nor can an embargo be placed on the powers of the Court to consider the appli cation for bail at any time till the case remains before the trial Court. It is settled by now that as soon as fresh material is brought on the record of the Court, the accused can file fresh application, irrespective of the fact that the bail has been declined by the trial Court or any Appellate Court in the first round of litigation in respect of subjec t of controversy , therefore, the argument on behalf of the complainant is found devoid of any force and without statutory backing."
Moreover , submission of challan is also a fresh ground for appellant-accused to move second bail application. The aforesaid view finds support from a case titled Muhammad Ibrar v. The State and another (PLJ 2011 Sh. C.
(AJ&K) 80), wherein, it was observed as under:- "Firstly , 1 choose to resolve the objection raised by the learned counsel for complainant that fresh ground is not available to the petitioner to file bail petition. It is by now admitted position of law that whenever a challan is presented or even the evidence of a single P.W is recorded, the accused becomes entitled to file a bail application; therefore, the instant petition is competent on the fresh ground."
Thus, we are of the considered view that the Court below , while declining bail to appellant-accused before submission of challan, did not commit any illegality; hence, the impugned order dated 04.05.2019, recorded by Additional Sessions Judge/Special Judge CNSA, Muzaf farabad, does not warrant any interference; however , appellant-accused shall be at liberty to move fresh bail application before the concerned Court below .
11. The crux of above discussion is that finding no substance in the instant appeal, it is hereby dismissed.