RAZA ALI KHAN, J.---This appeal has been filed against the judgment dated 29.04.2020, passed by the learned Additional Sessions Judge Kotli, whereby , bail application of the accused/appellant has been rejected.
2. The "Marasila" followed by the lodging of the FIR pertains to the case No.04/2020 dated 19.01.2020 registered under section 9(c) Control of Narcotic Substances Act, 2001 (hereinafter to be referred as CNSA) at Police Station Fatehpur Thakyala. According to story narrated in FIR complainant along with Police Constables Muhammad Haseeb and Hasnain Khan at 2:30 p.m. was present at "Barali Gala" Bazaar . Accu sed/appellant was apprehended while he was coming towards Barali Bazaar , near graveyard. On query , he told his name "Jabir Hussain alias Babar Butt". He was carrying shopping bag of blue colour . Upon his search, contraband "charas" in five pieces weighing 5 kg and 225 grams was recovered. For chemical- analysis 225 grams of "charas" was separated and sent to the laboratory while rest of recovered contraband "charas" was sealed into parcels.
3. The Accused/appellant after his arrest in order to seek his liberty on bail, filed application for bail before the learned trial Court/Additional Sessions Juage Kotli on 25.04.2020 which was rejected for all reasons recorded therein on 29.04.2020.
4. Having heard the learned counsel for the accused/appellant, learned AAG for the State, we have perused the record of the case, cursorily .
5. The learned counsel for the accused/appellant argued that the accused/appellant is quite innocent and there is no absolute evidence against him, which can connect him with the commission of offence. No contraband "charas" as alleged by the prosecution, was recovered from the possession of accused /appellant. The learned counsel while relying on following dictums of superior Courts, prayed for grant of bail;
1. 2010 PCr .LJ 61 1 "----497---Control of Narcotic Substance Act (XXI of 1997), S.9(a)---Possessing narcotic--Bail, grant of---Case was punishable with imprisonment for two years or with fine or both---Sample had not been taken from each Purrie of recovered heroin, but only 10 Purries had been taken out for chemical examination---There would be no proof regarding remaining heroin as to whether it was heroin or not---Accused could tentatively be saddled with liability of possessing 12 grams of heroin in case of positive chemical examination report ---No useful purpose would be served by keeping accused behind the bars-- Accused was admitted to bail, in circumstances."
2009 PCr .LJ 1334; "----S.9(c)---Non-production of case prope rty in Court---Ef fect--Unless the recovered narcotics are produced in the Court, it cannot be found that accused was carrying them on his person and the same were recovered from him."
2009 PCr .L.1 1340.
"----S.497---Control of Narcotic Substances Act. (XXV of 1997), S.9(c)---Bail, grant of--Prosecution had not clarified as to whether the sample had been taken from each piece of packet; and in the FIR it was not even mentioned as to what was the weight of each piece which had been recovered from the posses sion of accused; and what was the exact quantity taken from each piece---According to allegation, accused was selling the narcotics at a Dargah, but despite lapse of time waiting for the independent witnesses, no one could be found by the Police to act as Mashirs in the matter---False implication of accused in the offence alleged could not be ruled out in circumstances-- -Accused having made out a case for grant of concession of bail, he was granted bail."
6. On the contrary , Mr. Khurshid Anwar Mughal, the learned assistant Advocate General, argued that huge quantity of "charas" has been recovered from the possession of accused/appellant, Sufficient evidence is available against him which prima facie connects him with the commission of offence. The learned AAG vehemently opposed the submissions put forward by the learned counsel for the accused/appellant and prayed for dismissal of the captioned appeal in view of fact of previous dubious record of the accused/appellant and also referred to and relied upon the following case law:
(1) 2011 PCr .LJ 1593 ; (2) 2010 SCMR 1791 and (3) 2011 SC MR 460 .
7. It is well settled now that at bail stage, deep appreciation of record is not admissible and only a tentative assessment of available record is permis sible. Keeping in view this principle, we would avoid detailed discussion on merit of the case. On tentative assessment, it reveals that accused/appellant has been directly charged in the FIR and as per prosecution version, huge quantity i.e. 5kg and 225 grams of contraband "charas" was recovered from him. Sample, so separated from the recovered contraband "charas" was examined by the Chemical Examiner whose "positive" report is available on the file. The punishment for 9(c) CNSA is death penalty and life imprisonment. This offence not only falls within the prohibitory clause of section 497, Cr.P.C. but also comes under section 51 of CNSA, wherein, a specific embargo has been imposed on grant of bail and ordinarily no bail can be granted to the accused under this Act, because of non-obstante clause (section 51 of CNSA) operating in the field. For convenience, the provisions of section 51 of CNSA are extracted hereunder: "Section 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 substantial amount."
The aforesaid provision of section 51 of CNSA makes drastic departure from conventional canon of sections 497 and 498 of Criminal Procedure Code and power to grant bail under any provision of Code of Criminal Procedure Code sould necessarily be subject to conditions mentioned in section 51 of CNSA, The Control of Narcotic Substances Act, being a special enactme nt and having been enacted with a view to making stringent provision for control and regulation of operation relating to Narcotic Substances, therefore, while dealing with a bail matter , the same has to be kept in mind. It is mandat ory under section 51 of CNSA that before an accused/petitioner is held to be released on bail, the Court has to satisfy itself that there are reasonable grounds for believing that the accused is not involved in such offence. In the instant case, prima facie , in view of the material available, no reasonable C grounds for believing that the accused/appellant is not involved in the alleged of fence are available on record.
8. Taking into consideration the nature, the gravity of the offence, quantity of contraband recovered and most important apprehension that he is likely to commit the offence again while on bail, hence, this Court D does not find any merit in the captioned appeal and the same is accordingly dismissed.
We have gone through the case law relied upon by the learned counsel for the accused/appellant with utmost respect to the same has no relevance to the peculiar facts and circumstance of the case in hand, it is not helpful to the instant case. Even otherwise, each case specially criminal case depends on its own facts and close similarity in one case and in another case is not possible because circumstantial flexibility on additional on different facts may make a world of difference between conclusion in two cases. Disposal of cases by blindly placing reliance on decision is not proper .
9. According to police record, accused/a ppellant was arrested on 19.01.2020. Police has submitted the report under section 173, Cr.P.C. before the trial Court on 30.01.2020. Evidence of only two prosecution witnesses has been recorded yet. Keeping in view the circumstances of the case, the trial Court is directed to expedite the proceedings. It is made clear that nothing stating or observed while deciding instant appeal shall tantamount to expression on the merits of case.