' Petitioner Zar Gul is seeking bail in case F.I.R. No,597 dated 15-11-2002 Police Station Thall for offences under sections 13, A.O. And 9, C.N.S. Act. He has been refused bail by the learned trial Court.
2. Brief and short facts are that Inspector Syed Badshah on a tipe off raided the house of the petitioner situated in village Iram Banda, on 15-11-2002 at 12-30 hours and during search of the house contraband Charas weighing 2110 grams were recovered from one of the four residential rooms of the house of the accused petitioner which were sealed into parcel and sample taken from it was sent to expert who returned his report in the positive.
3. For the petitioner it was contended that he is a victim of a patently false charge and for that reason despite having an ample opportunity to procure and cite two witnesses from the public or the co-villagers, no effort was made to that effect. Further contended that the alternate punishment provided for the offence is an imprisonment which may extend to 14 years and in the given circumstances the maximum punishment is not likely to be awarded even if the charge is proved against the petitioner at the trial. Further added that no arrest card was prepared nor in site-plan the place of his arrest has been shown. Much emphasis were laid on the point that being joint residential house occupied by several, both male and female, criminal liability of the petitioner cannot be determined exclusively with reference to the recovery of Charas, therefore, his case falls within the limb of subsection (2) of section 497, Cr.P.C.
4. For the State it was vehemently argued that more than 2 Kgs. Charas was recovered from the residential house of the accused and no mala fide could be attributed to the police and because under the provisions of section 21 of the C.N.S. Act the police officer was within his authority to conduct the search and makes seizure, therefore, no illegality has been committed in the given circumstances for not obtaining search warrant and not associating two respectable witnesses of the locality with the search and recovery proceedings. Further added that in view of the exclusion of the application of section 103, Cr.P.C..,by the provisions of section 25 of the C.N.S. Act in express terms, non-association of witnesses from the locality in the instant case would not make the search, seizure and arrest illegal.
5. True that the provisions of section 21 read with section 25 is a violent exception to the universal principle of law on the question of search of any building, enclosure etc. By the police officer and the Legislature in its wisdom keeping in view the gravity and menace as well as the evil effects of the tremendous increase in the trafficking and sale of narcotics has no doubt created exceptions which are justified for the above reasons but still the judicial emphasis has long been that to give credibility to search and recovery made by the police officer the association of two respectable persons from the locality is not an unessential formality.
6. The perusal of section 21 reveals that the exceptional powers given to the police officer of the rank of S.-I. Therein are not absolutely unqualified one because it has been made mandatory for such officer to show that in case of obtaining search warrant as required under section 20 of the ibid Act either the narcotics would be concealed or destroyed or the evidence to that effect would be caused to disappear or that adopting such process would result in the escape of the offender.
Further under subsection (2) it has been made mandatory for the officers making the search that either before making the same or soon thereafter he shall record grounds and basis for his information for taking the action or proposed action and forthwith to send a copy thereof to his immediate superior officer.
7. Keeping in view the above legal position emanating from the reading of the provisions of sections 20, 21 and 25 of the ibid Act combinedly the necessary implications are that the Legislature has not given a free licence/authority to such officer to conduct search in private buildings like residential houses according to his own whims and wishes. His such actions are definitely controlled by the check and balance system provided therein, therefore, such officer while exercising the exceptional powers conferred upon him under the provisions of section 21 is required to act strictly within the ambit of the said provision otherwise his action would be susceptible to serious doubts beside attracting the mischief of irregularity to his such proceedings.
8. To abide by the law or to comply with the law being synonymous term, is the firm command of the Constitution which means and requires complete obedience and full compliance thereof. No one is permitted to be selective by making pick and choose in this regard nor piecemeal application of law is allowed.
9. In the instant case both on the judicial and police files we have found that no such reasons as required under subsection (2) of section 21 E have been recorded to justify the action taken under the colour of so-called urgency/emergency.
10. Apart the above legal infirmity attached to the action taken by the S.H.O., on record no arrest card of the accused is available nor in the site-plan any point has been given to the place of his arrest as claimed by the S.H.O. In the F.I.R. Besides the house in question consist of four residential rooms and there is strong probability that the accused alone is not the sole inmate of the house, therefore, his exclusive liability for the recovered Charas is a matter which requires further inquiry.
Moreover, the alternate punishment provided for the offence is 14 years' R.I. At the most and in the given circumstances the awarding of maximum punishment is equally a matter of debate. At present on the available material both no legal and factual premises the case against the petitioner requires further inquiry and it is for the prosecution to clarify these infirmities and shortcomings in its evidence at the trial but till that Vie petitioner is entitled to the benefit of doubt.
11. For the above reasons, therefore, this petition is allowed, the petitioner is granted bail in the sum of Rs,1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of the trial