IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-469 of 2021

  

  

Applicant:                                  Sadam Hussain Chandio, 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 Sadam Hussain son of Mazhar Ali Chandio, seeks his post-arrest bail in FIR No.122/2021, 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 1050 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 1050 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 1050 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 Ali 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 with which the accused is charged 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