2018 (11) TMI 1955 - HC - Indian Laws

Police report under Section 173(2) without Chemical Examiner report makes incomplete challan in NDPS cases

The Punjab & Haryana HC held that a police report under Section 173(2) Cr.P.C. in NDPS cases without a Chemical Examiner/Forensic Science Laboratory ... Grant of Default bail - smuggling of contraband - presentation of report under Section 173(2) Cr.P.C. by the police without the report of Chemical examiner/Forensic Science Laboratory amounts to incomplete challan or not - absence of any extension of time under Section 36-A(4) of the N.D.P.S. Act - HELD THAT:- When a report is submitted by the police to the Magistrate, he ought to apply his mind to see whether it discloses the commission of an offence, so as to enable it to subject the accused to the rigors of a trial - What would also necessarily flow from this, would be a prima facie opinion by the Court of the commission of an offence which under the N.D.P.S. Act would revolve around establishing the posession of contraband, its nature, content and extent. With respect to the question posed by the learned Single Judge regarding some of the contraband being identifiable through naked eye, inspection based on experience and knowledge, would be a great fallacy and we would respectfully state that it would be grossly unsafe to rely upon such an opinion based on naked eye inspection backed by experience or knowledge to arrive at a prima facie opinion of the commission of an offence to submit an accused to the rigors of trial by the Magistrate in the exercise of its powers under Section 190 Cr.P.C. - Non-inclusion of the Chemical Examiner's opinion in the report under Section 173 Cr.P.C. would expose the accused to unfounded dangers imperiling and endangering his liberty since the provisions of the N.D.P.S. Act in its applicability to a trial and conclusion are stringent in consequence. Thus, it is essential that the report of the Chemical Examiner be included in the report under Section 173 Cr.P.C. and without which it can at best be termed to be an incomplete challan depriving the Magistrate of relevant material take cognizance and if it is not submitted within the requisite period of 180 days, it would essentially result in a default benefit to the accused unless an application is moved by the Investigating Agency apprising the Court of status of investigation with a prayer for extension of time to the satisfaction of the Court. The State should also sensitize their Investigation Officers to make an application for extension of time to submit the report in the prescribed period so as to obviate any chances of an accused getting benefit of the default clause. Reference disposed off - List all the cases before Single Bench appropriately as per roster. Issues Involved:1. Whether the presentation of a report under Section 173(2) Cr.P.C. by the police without the report of the Chemical Examiner/Forensic Science Laboratory amounts to an incomplete challan.2. Whether, in the absence of any extension of time under Section 36A(4) of the NDPS Act, the accused is entitled to bail under Section 167(2) Cr.P.C.3. The position regarding commonly used substances like opium and poppy husk, which can be easily identified by the police officer from visual inspection, smell, or taste.Detailed Analysis:Issue 1: Incomplete Challan Without Chemical Examiner's ReportThe court examined whether a police report under Section 173(2) Cr.P.C. without the Chemical Examiner's report is considered incomplete. The court noted conflicting judgments on this issue. Some judgments, such as Siya Ram v. State(U.T.) Chandigarh and Sukhchain Singh v. State of Punjab, held that the absence of the Chemical Examiner's report renders the challan incomplete, entitling the accused to bail under Section 167(2) Cr.P.C. Conversely, other judgments like Nirmal Singh alias Kala v. State of Punjab and Kulwinder Singh v. State of Punjab argued that the challan could still be considered complete without the Chemical Examiner's report.The court referred to the Full Bench judgment in State of Haryana v. Mahal Singh and others, which concluded that the police report is complete if it includes all relevant evidence and facts, even if the expert's report is pending. The court emphasized that the Chemical Examiner's report is crucial for establishing the nature of the contraband, and without it, the challan is incomplete, depriving the Magistrate of essential material to take cognizance.Issue 2: Entitlement to Bail Under Section 167(2) Cr.P.C.The court highlighted Section 36A(4) of the NDPS Act, which extends the period for completing the investigation to 180 days, with a possible extension to one year upon a report by the Public Prosecutor. If the investigation is not completed within this period and no extension is sought, the accused gains an indefeasible right to bail under Section 167(2) Cr.P.C. The court stressed that the State must seek an extension timely to avoid the accused benefiting from the default clause.Issue 3: Identification of Commonly Used SubstancesThe court addressed the question of whether substances like opium and poppy husk, identifiable by police through visual inspection, smell, or taste, could be considered sufficient for a complete challan. The court rejected this notion, stating it would be unsafe to rely on such subjective methods for establishing the nature of contraband. The Chemical Examiner's report is essential for a prima facie opinion on the commission of an offense under the NDPS Act.ConclusionThe court concluded that the Chemical Examiner's report is an integral part of the investigation under the NDPS Act. Without it, the challan is incomplete, and the accused is entitled to bail under Section 167(2) Cr.P.C. if the statutory period expires without an extension. The court urged the State to improve its infrastructure to provide timely Chemical Examiner's reports and to sensitize Investigation Officers to seek extensions when necessary.The reference was answered accordingly, and the cases were directed to be listed before the Single Bench as per the roster.