ROOH-UL-AMIN KHAN, J. Petitioner Zulqarnain alias Karnali, seek s post arrest bail in case FIR No.1488 dated 25.11.2021, under sections 9(d) and 11 (b) Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, Police Station Nowshera Kalan.
2. According to FIR, on receipt of information from the last so many days qua dealing of the petitioner in the detestable business of narcotics, on 25.11.2021 Fakhr-ul-Islam ASI after obtaining search warrant from the court of learned Judicial Magistrate, along with other police officials conducted raid on the house of the petitioner situated in village Allah Yar Khel and apprehended the petitioner along with his brother co-accused Jibran on motorbike in the door of his house. On search of accused Jibran he recovered pieces of chars weighing 398 gram from his possession. Similarly , on search of petitioner Zulquarnain he recovered Ice weighing 245 grams, and a plastic envelop hanging in his motorcycle led to the recovery of 1208 grams chars. He separated samples from each quantity of the recovered narcotics and sealed the same into parcels. He arrested both the accused, hence, this case.
3. Arguments of learned counsel for the parties heard and record perused with their able assistance.
4. In the site plan, the place of occurrence is shown in the door of the house of the petitioner , whereas in the FIR it has been categorically mentioned by the Seizing Officer that for conducting raid on the house of the petitioner he obtained search warrant. No lady constable has been associated with the raid and recovery proceedings which was the mandatory requirement of section 27 of the KP CNS Act, 2019. Similarly , no independent person as required under the mandatory provisions of section 31 of the Act ibid has been associated with the raid and recovery proceedings. No time for observing Pardha to the women folk of the petitioner's house has been given.
The non-compliance of the provisions of sections 27 and 31 of the Act (ibid), has penal consequences under section 32 Cr.P.C of the Act ibid. The seizing Officer in order to avoid the penal consequences, contrary in the site plan, has shown the spot in front of door of the house of the petitioner . In view of the non-compliance of the aforesaid mandatory provisions of the KP CNS Act, 2019, what would be the fate of the prosecution's case is yet to be determined during trial, however , at the moment the above discussed circumstances makes the case of the petitioner arguable for the purpose of bail. Investigation in the case is complete and petitioner is no more required for further interrogation.
5. Accordingly , this petition is accepted. Petitioner is allowed bail. He shall be released on bail provided he furnishes bail bonds in the sum of rupees two lacs with two local, reliable and resourceful sureties each in the like amount to the satisfaction of learned Illaqa Judicial Magistrate/MOD concerned.