2015 M L D 499
[Balochistan]
Before Muhammad Noor Meskanzai and Mu hammad Kamran Khan Mulakhail, JJ
ABDUL QADEER---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.68 of 2014, decided on 18th September, 2014.
Criminal Procedure Code (V of 1898)---
----Ss. 497, 103 & 537---Control of Narcotic Subs tances Act (XXV of 1997), Ss.9(c), 21, 22, 23
& 25---Possessing and trafficking of narcotics---Ba il, refusal of---Accused being driver of truck
from which alleged contraband items were recove red, was incharge of th e same, and it was under
his control and possession and knowledge---Accu sed was in conscious possession of the
contraband items and same could be attributed to him---No enmity of accused with the Anti-
Narcotic Force was established---Section 25 of Cont rol of Narcotic Substances Act, 1997, having
excluded applicability of S.103, Cr .P.C., failure to associate any private witness in recovery
proceedings, could not be termed as fatal to the prosecution case---Sections 21, 22 & 23 of
Control of Narcotic Substances Act, 1997 being directory in na ture, non-compliance thereof,
would not vitiate the tr ial, which was a mere irregularit y and curable under S.537, Cr.P.C.---
Provisions of S.9(c) of Contro l of Narcotic Substances Act, 1997, though had provided that no
Officer below the rank of Sub-Inspector of Polic e would be authorized to exercise powers under
that Act but provision being directory in nature, would not vitiate the tria l---Challan of the case
having already been submitted before the Trial Court; any observation at that stage could
prejudice the case of either side---Contention with regard to rule of c onsistency, was of no
assistance to accused, for the sole reason that ev idence against accused was not at par with that
of co-accused, who had been admitted to bail ---Accused could not be admitted to bail, in
circumstances, his bail application was dismissed, in circumstances.
Sherzada v. The State 1993 SCMR 149 rel.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- The applicant Abdul Qadeer
son of Saleh Muhammad seeks bail in case F.I.R. No. 5 of 2013 registered with Police Station
ANF Quetta in respect of offences under sections 9( c) of the Control of Na rcotic Substances Act,
1997 ("CNS Act")
2. That the earlier application filed by the app licant/accused for grant of post arrest bail was
rejected by the Special Judge, CNS Balochis tan, Quetta vide order dated 14-10-2013.
3. The brief facts out of which this and th e earlier application has arisen are that
applicant/accused was apprehende d on the date, time and place as mentioned in the aforesaid
F.I.R. The ANF personnel upon a spy informa tion stopped a Truck bearing No. TAB 425,
Lasbella, wherefrom 155 sacks containing 4650 Kg of poppy straw were recovered. The
applicant/accused being driver of the said ve hicle along with other co-accused persons were
apprehended at the spot and the F.I.R. was lodged.
4. The learned counsel contended that despite having advance informa tion the raiding party
did not associate any private pe rson during the course of arrest. He added that the Soobedar
cannot be cited as compla inant in Narcotics case, which being violative of substantive provision
of law is not curable. He added that the F.I.R. is silent about weighing of contraband item and the
whole proceeding was carried out in the ANF po lice station. He finally urged that the case
against the applican t/accused falls within the ambit of further inquiry. He also referred to the
order dated 19-8-2013 in Criminal Bail Applic ation No.54 of 2014 whereby the co-accused was
admitted to bail by this court. He maintained th at keeping in view the principles of rule of
consistency the applicant is also entitled to get the benefit of bail as on basis of same set of
evidence his co-accused has already been admitted to bail.
5. Mr. Shaukat Ali Rakhshani, Special Prosecu tor ANF strongly opposed the plea of bail
and contended that applicant/accused was apprehended read-handed and no ill-will or mala fide
has been shown for his false implication; therefore, the applicant is not entitled for grant of bail.
6. We have heard the learned counsel for the applicant/accused and the learned A.P.G. and
have also gone through the record with their assistance. On peru sal we have observed as under:--
(a) The applicant/accused was arrested by th e ANF personnel on basis of spy information.
(b) The applicant/accused was apprehended along while driving th e truck from which
recovery of 4650 Kg of poppy straw was effected, meaning thereby that he was in conscious
possession of the contraband item.
(c) The applicant/accused has failed to show any sort of personal enmity with the ANF
personnel.
(d) The section 25 of the CNS Act clearly excl udes the applicability of section 103 of the
Criminal Procedure Code, 1898 (" Cr.P.C."), therefore for not associating any private witness
cannot be termed as fata l to the prosecution case.
(e) The sections 21, 22 and 23 of the CNS Act are directory in nature and non-compliance
thereof does not vitiate the tria l, which being mere irregulari ty is curable under section 537,
Cr.P.C.
(f) The applicant/accused being driver of the truck from which contraband items were
recovered was in fact In-charg e of the same and it was unde r his control and possession and
knowledge that whatever material was available in the same has to be attributed to him. Reliance can be placed on the case of Sherzada v. The St ate 1993 SCMR 149 relevant portion whereof is
reproduced here under:
"10. It is true that the offence cannot be made out against any person unless he has the
conscious possession of the contraband article, but the knowledge is an inner quality which can
only be inferred from the circumstan ces of the case. There is no ha rd and fast rule which can be
laid down in this respect. It depends upon the circumstances whether the knowledge and
conscious possession have been reasonably inferred from the facts proved on the record. In the
present case the appellant was driving the car from Mardan and it is not believable that he had no
knowledge of the articles found in the car. Had he taken the plea that th e articles were found in
the secret chambers and they were put by the owner without his knowle dge, this point can be
helpful to him, but in the instant case he did not ta ke such a plea. He did not only deny the fact of
recovery, but also claimed that the secret chambe rs were created by the Excise party itself. In
such a case it cannot be held that he did not have the knowledge of the arti cles found in the car
driven by him."
(g) The provision of section 9( c) of the CNS Act although provide s that no officer below the
Rank of Sub-Inspector of police would be authorized to exerci se powers under this Act but the
provision being directory in nature does not vitiate the trial. The sub-clause (d) of section 21 of
the CNS Act, itself provides that where there is apprehension of concealment of evidence and
possibility of escape of an offender, "such officer shall immediately arrest any person, whom he
has reason to believe to have committed an o ffence punishable under this Act". Even otherwise
the provision of section 21 imposes an embargo th at the investigation of the case may not be
authorized to an officer below the Rank of Sub -Inspector, whereas the provision of Cr.P.C. shall
mutatis mutandis apply to all proceedings under the CNS Act. The Cr.P.C. being a regulatory
law of criminal proceedings does not impose a ny restriction on becoming complainant of any
case on anyone; therefore, be nefit at bail stage cannot be extended on this ground.
(h) The challan of the case has already been s ubmitted before the trial court; therefore any
observation at this stage may prej udice the case of either side.
(i) The contention as regards to rule of consistency is of no assistance to the
applicant/accused for the sole re ason that the evidence against th e applicant/accused is not at par
with that of co-accused Muhammad Dawood w ho has been admitted to bail; therefore, the
principle of rule of consis tency cannot be pressed into service at this stage.
In view of above observations we are not inclined to admit the applicant/accused to bail
and the application is dismissed being devoid of merits.
H B T / 2 / B a l B a i l r e f u s e d .This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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