Salam Noor vs State

2014 P Cr. L J 454

[Peshawar]

Before Qaiser Rashid Khan, J

SALAM NOOR---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.156-P of 2013, decided on 1st March, 2013.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics- --Bail, refusal of---Narcotic hidden in a vehicle---Driver of vehicle, liability of---Conscious knowledge of presence of narcotic---Scope---Accused was driving a truck, which was stopped at a police checkpoint---Upon search of the truck 40 packets of narcotic weighing 40 kilograms were found from the spare tyre of the vehicle---Plea of accused was that he did not have any conscious knowledge of the narcotic in the spare tyre, and that co-accused, who was sitting in the front seat of the truck, had already been granted bail---Validity---Driver of the vehicle was supposed to be custodian of the same---Merely shrugging of shoulders by the accused that he had no conscious knowledge of what was present in the spare tyre of the vehicle was a self-defeating argument---Report of Forensic Science Laboratory in respect of all the samples was in the affirmative---Case of accused was different from the co-accused, who had been granted bail on the grounds that he was not driver of the vehicle, therefore, he could not be saddled with responsibility of possession of contraband recovered from spare tyre of the vehicle---Accused was prima facie connected with the commission of the offence---Bail petition was dismissed accordingly.

Miss Farhana Marwat for Petitioner.

Alamgir Khan, DAG for the State.

Date of hearing: 1st March, 2013.

JUDGMENT

QAISER RASHID KHAN, J.---Through the instant petition, the petitioner seeks bail in case F.I.R. No.381 dated 24-12-2012 registered under section 9(c) of Control of Narcotic Substances Act at Police Station Regi, Peshawar after the same concession was refused to him by the learned Additional Sessions Judge-XII/JSC, Peshawar vide order dated 19-1-2013.

2.As per facts emanating from the F.I.R., on receipt of spy information that charas would be smuggled, Lal Hameed Khan SI laid 'Nakabandi', whereafter a truck was stopped for checking, the driver of which disclosed his name to be Salam Noor while the person sitting on the front seat told his name to be Zeenat Shah. The search of the vehicle led to the recovery of 40 packets from the stepny (spare tyre) of the vehicle which on weighing came to 40 kilograms, whereafter 5 grams from each of the packet were separated for the purpose of chemical examination, hence the F.I.R. ibid.

3.Learned counsel for the petitioner argued that the petitioner is innocent and has been falsely implicated in the case; that there is no independent and disinterested witness to support the prosecution version; that neither the recovery was effected from the personal possession of the petitioner nor at his pointation; that the co-accused has already been enlarged on bail, therefore, the petitioner is also entitled to the same concession.

4.The learned D.A.G on his turn strongly resisted the bail petition of the petitioner and argued the case on almost the same grounds as detailed in the impugned order.

5.Arguments heard and record perused.

6.As the record reveals, it was on prior information that charas was to be smuggled, when the complainant along with police force laid a 'Nakabandi', whereafter a truck which was driven by the petitioner was stopped and the stepny (spare tyre) of the vehicle led to the recovery of a huge quantity of 40 kilograms of charas. Feigning ignorance and pleading innocence by the petitioner regarding the contraband charas is of little consequence. The driver of the vehicle is supposed to be custodian of the same. Thus merely shrugging off the shoulders by the petitioner that he had no conscious knowledge of what, was there in the stepny of the vehicle is a self- defeating argument. Narco-trade has become a lucrative business and when its one trip can fetch millions of rupees to a person, then many people have fallen prey to such temptation and the petitioner prima facie appears to be no exception. The report of the F.S.L. in respect of all the samples is in the affirmative. The case of the petitioner is distinguishable from that of his co- accused and in the bail granting order it was held that he being not the driver of the vehicle cannot be saddled with the responsibility of possession of the contraband recovered from the stepny of the vehicle.

7.Taking a tentative assessment of the available record, the accused/petitioner is prima facie connected with the commission of offence and is thus not entitled to the concession of bail.

8.For the reasons mentioned above, the instant bail petition being bereft of any merit is hereby dismissed.

9.Any observations made in the order being tentative in nature should in no way prejudice the proceedings before the learned trial Court.

MWA/235/P Bail refused.