2021 M L D 553
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
RAHIM BAKHSH ---Applicant
Versus The STATE ---Respondent
Criminal Bail Application No.(T) 29 of 2020, decided on 10th June, 2020.
(a) Criminal Procedure Code (V of 1898)--- ----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9---Possession of
narcotics ---Bail, refusal of---Scope ---Accused was alleged to have been found in possession
of two kilograms of charas while 200 grams of charas was also recovered from right side of
his pocket ---High Court observed that where the quantity of 400/500 grams marginally
exceeded the upper limit of 1000 grams, being borderline cases between Cls. (b) & (c) of S.9 of Control of Narcotic Substances Act, 1997, the accused persons were admitted to bail;
however, in the present case, besides recovery of 2000 grams of charas 26 grams of crystal was also recovered from the personal possession of accused, thus, it was not a case of borderline ---Petition for grant of bail was dismissed, in c ircumstances.
Noor Khan v. State 2012 MLD 1542; Ghulam Murtaza v. State PLD 2009 Lah. 362
and Jamal -ud-Din v. State 2012 SCMR 573 ref.
(b) Criminal Procedure Code (V of 1898)---
----S.497---Bail ---Principle ---Scope ---Court while hearing a bail application is not to keep in
view the maximum sentence provided by the statute for the charged offence but the one
which is likely to be entailed.
Socha Gul v. State 2015 SCMR 1077 rel.
Habib -ur-Rehman Baloch for Applicant.
Yahya Baloch, Additional Prosecutor G eneral for the State.
Date of hearing: 4th June, 2020.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Through this application, the
applicant viz. Rahim Bakhsh son of Hal -ud-Din, seeks concession of bail in Crime No.90 of
2020 dated 02.5.2020, under section 9(c) of the Control of Narcotic Substances Act, 1979 of
Police Station City, District Kech, lodged on the report of one Abdullah, IP, which was declined by the learned Special Judge for CNS, Mekran at Turbat vide order dated 13.05.2020.
2. It is case of the prosecution that on 02.05.2020 at 3:50 p.m. the complainant along
with other police personnel of PS City, Turbat during checking at Police Naka at Link Road
Overseas Colony, stopped the accused/applicant, who was riding a motorcycle and found a
plastic ba g on his lap. On search of the said bag they recovered two kilograms of charas,
while also recovered 200 grams of charas from right side of his pocket.
3. Mr. Habib- ur-Rehman Baloch, learned counsel for the applicant contended that the
instant case is of borderline between clauses (b) and (c) of section 9 of the CNS Act, 1997.
He' further submitted that the quantum of sentence has to be commensurate with the quantum
of substance recovered. According to the learned counsel, the Court, while dealing with the
bail matter, is not supposed to keep in mind the maximum sentence provided by the Statute but the one which is likely to be entailed by the facts and circumstances of the case. In support of his contention, he placed reliance on the cases of "Noshad v. Sta te" ((sic) PCr.LJ
1901), "Noor Khan v. State (2012 MLD 1542), "Ghulam Murtaza v. State" (PLD 2009 Lahore 362) and "Jamal -ud-Din v. State" (2012 SCMR 573).
4. On the contrary, Mr. Yaya Baloch, learned Additional Prosecutor General, while
opposing the instant application, contended that huge quantity of narcotics has been recovered from the personal possession of applicant, therefore, he is not entitled to the
concession of bail.
5. So far as the first contention of the learned counsel regarding the quantity of
recovered substance is concerned, it has been consistent view of the Superior Courts that in
cases where the quantity of 400/500 grams marginally exceeds the upper limit of 1000
grams, being borderline cases between clauses (b) and (c) of section 9 of t he CNS Act, 1997,
the applicants have been admitted to bail; however, in the instant case, besides recovery of 2000 grams of charas 26 grams of crystal, have also been recovered from the personal possession of accused/applicant, thus, it is not a case of borderline.
6. Reverting to the second limb of argument, undoubtedly, in Jamal -ud-Din's case, the
accused was admitted to bail by the honourable two member bench of the Supreme Court with the observation that while hearing a petition for grant of bail the C ourt is not to keep in
view the maximum sentence provided by the Statute for the charged offence, but the one, which is likely to be entailed. However, subsequently, a three -member bench of the Hon'ble
Supreme Court in the case of "Socha Gul v. State" (2015 SCMR 1077), while refusing bail in a narcotics case observed as under: -
"5. From the above reproduction, intent and scheme of the legislator is quite clear
about the quantum of prescribed punishment under section 9(c) (ibid), which could be either death or imprisonment for life or an imprisonment for a term which may extend to fourteen years, in addition to fine up to One million rupees. In our opinion, in such
circumstances, neither categorization of sentencing nor any guess work or speculative
exercise could be undertaken by the Court at bail stage to enlarge and accused on bail in such crimes, which will amount to pre -empting the mind of the trial Court,
controlling its powers in the matter of sentencing an accused and determining a quantum of sentence upon his conviction".
While dilating upon the proposition in hand it was furt her observed that:
"It is pertinent to mention here that the offences punishable under C.N.S Act of 1997 are by its nature heinous and considered to be the offences against the society at large
and it is for this reason that the statute itself has provide d a note of caution under
section 51 of C.NS Act of 1997 before enlarging an accused on bail in the ordinary
course. When we refer to the standards set out under section 497, Cr.P.C. for grant of
bail to an accused involved in an offence under section 9(c) of C.N.S. Act of 1997,
even on that basis we find that an accused charged with an offence, prescribing various punishments, as reproduced above, is not entitled for grant of bail merely on account of the nature or quantity of narcotics substance, being four kilograms. Firstly,
as deeper appreciation of evidence is not permissible at bail stage and secondly, in
such situation, looking to the peculiar features and nature of the offence, the trial
Court may depart from the normal standards prescribed in the c ase of Ghulam
Murtaza (supra) and award him any other legal punishment. Thus, in our opinion, ratio of judgment in the case of Ghulam Murtaza (supra) is not relevant at bail stage."
For the discussion made hereinabove, the application, being without merit s, is
accordingly dismissed. However, the observations made hereinabove are purely tentative in nature only for disposal of the instant application and the trial Court should not be influenced
by it in any manner.
SA/137/Bal.
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