IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Bail
Application No.S-457 of 2021
Applicant: Mushtaque @
Mustoo, through
Mr.
Sher Muhammad K. Shaikh,
Advocate
Respondent: State through
Mr.Khalil Ahmed Maitlo, DPG
Date of
hearing: 27.08.2021
Dated of order: 27.08.2021
O R D E R
Zulfiqar
Ali Sangi, J: Applicant/accused Mushtaque alias Mustoo son
of Qabool Ahmed Chandio, seeks his post-arrest bail in
FIR No.121/2021, registered at Police Station Ranipur, under section 9(c) of
the Control of Narcotic Substance, Act, 1997. His earlier bail application was declined by
the learned Additional Sessions Judge-I (MCTC)/Special Judge for (CNS),
Khairpur, vide order dated 19.07.2021, hence he approached this court by
filing present bail application.
2. The
allegation against the present applicant is that he was apprehended by the
police party of police Station Ranipur headed by SIP Abdul Karim Dasti and 1100
grams Charas was recovered from his possession for which present case was
registered.
3. Mr. Sher Muhammad K.Shaikh
Advocate files vakalatnama on behalf of applicant which is taken on record. He has
contended that the recovery proceedings are in violation of section 103 Cr.P.C
and the applicant has falsely been implicated by the police. He next contended
that it is a case of border line between section 9(b) and 9(c) of CNS Act, 1997
which comes within the scope of section 9(b) of CNS Act, 1997 and does not fall
within prohibitory clause of section 497 Cr.P.C. He further contended that the report
of chemical examiner has not yet been issued and the case has been challaned
and applicant is in custody and no more required for further investigation, as
such the applicant is entitled for concession of bail.
4. On
the other hand learned DPG has opposed the grant of bail contending that a considerable
quantity of 1100 grams charas has been recovered from the possession of
applicant and since the offence is against the society, therefore, it comes
within exceptions for refusal u/s 497 Cr.P.C, hence the applicant is not
entitled for grant of bail. However, he conceded that the report of chemical
examiner is not yet received.
5. I
have heard learned counsel for the applicant, learned DPG for the state and
have gone through the material available on record with their able assistance.
6. The
applicant was apprehended by the police and allegedly 1100 grams Charas was
recovered from his possession which marginally exceeded upper limit of section
9(b) of CNS Act and it is case of border line between clauses (b) and (c) of
section 9 of Control of Narcotic Substances Act 1997. In this regard I am
fortified by the case law reported as, Sheeren Muhammad v. The
State (2006 P.Cr.L.J 726), Mehboob Ali v. the State (2007 YLR 2968), and Ayaz
v. The State (2011 P.Cr.LJ 177). Further all the witnesses of the incident are
police officials and none from the public has been cited as witness and the offence does not fall
within the ambit of prohibitory of clause of section 497 Cr.P.C and the
Honourable Supreme Court in numerous judgments has held that the bail in cases
which do not fall within prohibitory clause of Section 497 is right and its
refusal is an exception. Further the prosecution has failed to produce report
of the chemical examiner. Moreover, the applicant is in custody and is no more
required for further investigation.
7. It is
settled principle of law that while deciding the bail plea of accused deeper
appreciation of evidence is not permissible and the material is to be assessed
tentatively. From the tentative assessment of material available on record as
discussed above, the applicant has been able to make out a case of further
inquiry into his guilt. Resultantly, this application is allowed and the
applicant is granted post-arrest bail subject to furnishing his solvent surety
in the sum of Rs.100,000/- (one Lac), and PR
bond in the like amount to the satisfaction of the trial court.
8. Observations
made herein above are tentative in nature and will not cause any prejudice to
either party at the trial.
9. Instant Criminal Bail Application is disposed of in the above terms.
JUDGE
Suleman Khan/PA