ALI BAIG, J.---Through the instant bail petition, the petitioners/ 'accused namely Imran Ullah and Tahir All have sought post arrest bail in case FIR No.93/2019 dated 23-12-2019, registered under section 9(c) CNSA, 1997 at Police Station City Gahkuch.
2. According to the prosecution, allegation s set up in the FIR are that on 23-12-201 9, complainant namely UP/H.C.
Nusrat Khan CTD Branch Gahkuch received spy information that petitioner/ accused namely Imran Ullah son of Qadeer Khan resident of Kashrote has left for Gahkuch in vehicle along with Arms. Accordingly , the complainant above named waited and started snap checking of vehicles at Levies Check Post Gahkuch. In the meanwhile, the present petitioners/accused arrived at Levies Check Post at Gahkuch and accordingly the complainant and his companions searched the vehicle of petitioners. The complainant recovered 2000 grams contraband charas from the vehicle owned by the petitioners. Complainant has also recovered Rs.6000/- from the possession of petitioner/accused namely Imran Ullah and Rs.22,000/- from the petitioner/ accused namely Tahir Ali.
3. The learned counsel for the petitioners/accused has contended that the petitioners/accused are innocent and police have falsely implicated them in this case with mala fide intention. The learned counsel for the petitioners/accused has further contended that the FIR was lodged by one Nusrat Khan UP/H.C. CTD and under the provisions of section 21 of Control of Narcotic Substances Act 1997, the UP-H/ C is not competent to lodge FIR and search the petitioners/ accused. The learned counsel for the petitioners/ accused has further argued that despite lapse of about two months of the registration of FIR, report of Chemical Examiner has not been received.
The learned counsel for the petitioners/ accused has further argued that the contraband charas was recovered from joint possession of both the petitioners through single recovery memo; thus, joint recovery is not admissible in evidence, hence case of the petitioners requires further inquiry .
4. Conversely , the learned Deputy Advoc ate General has vehemently opposed this petition by contending that the petitioners/accused are directly charged in the promptly lodged FIR and huge quantity of contraband charas was recovered from the possession of the petitioners. The learned Deputy Advocate General has further argued that offence under section 9(c) CNSA 1997 falls within the ambit of prohibitory clause of section 497(1), Cr.P.C; therefore, the petitioners are not entitled for concession of bail.
5. I have carefully considered the arguments advanced by the learned counsel for the petitioners as well as the learned Deputy Advocate General and with their able assistance have gone through the record.
6. The petitioners/accused were arrested on 23-12-2019 and a period of about 2 months has elapsed but expert report of Chemical Examiner has yet not been received by the police. Non-availability of report of Chemical Examiner requires the instant case of the petitioners one of the further inquiry . Both the petitioners were boarded in the same vehicle and contraband charas was recovered from the said vehicle. A joint recovery memo was prepared which is not admissible in evidence. Moreover , one UP/H.C. namely Nusrat Khan has lodged FIR, arrested the petitioners and conducted search of vehicle of the petitioners/ accused, whereas, under the provisions of section 21 of the Control of Narcotic Substances Act, 1997, an officer not below the rank of Sub-Inspector can search, seize and arrest the accused without warrant. Thus, the complainant was not competent to arrest the petitioners/accused and search their vehicle.
7. Result of above discussion is that this bail petition is accepted.
Consequently , the petitioners/accused be released on bail subject to their furnishing bail bonds in the sum of Rs.300,000/- (Rupees Three lac) with two sureties each in the like amount to the satisfaction of the learned trial court at Gahkuch, File.