TaxTMI 
TaxTMI 
2018 (11) TMI 1955
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....dal, Advocate ORDER MAHESH GROVER, J. By this order we shall answer the common question sent up to us in these seven cases the details of which have been given above. We have been called upon to answer the question set out below :- "Whether the 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 and in the absence of any extension of time under Section 36-A(4) of the N.D.P.S. Act, the accused is entitled to bail under Section 167(2) Cr.P.C. ?" The learned Single Judge framed two questions in his order dated 28.1.2016 which we also set down here below :- "1. Whether the presentation of report under Section 173 (2) Cr.P.C. by the police without the report of chemical examiner/FSL amounts to incomplete challan and 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. ? 2. If the reply is in the affirmative, then what is the position regarding commonly used substances like opium and poppy husk etc., which can be easily identified by the police office....
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....under section 170 ; (h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C, 376D or section 376E of the Indian Penal Code (45 of 1860). (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. ... ... ... (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report - (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation ; (b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses." One of the first judgments that strikes the chord on the question of a police report as envisaged in the afore-extracted provisions of law, is the State of Haryana v. Mahal Singh and others 1978 P.L.R. 480. While basing its rea....
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....and submitted only after the completion of the investigation. So far as the investigation part of the job of the investigating officer is concerned, it is complete if he has collected all evidence and facts that are detailed in subsection (2) of section 173 of the Code and from the evidence thus collected he is satisfied that the case deserves to be initiated against the accused. And, even if the investigating officer had not received the report of the expert, so far as his job of collecting of the evidence is concerned, that is over the moment he dispatches the material for the opinion of the expert and incidentally cites him as a witness if he relies on his testimony." Evidently, the Court while making the afore-extracted observations, did so while strictly interpreting the provisions and scope of the Cr.P.C. and in the backdrop of general offences confined to the I.P.C. or some other statutes but was not seized of a Special Act as the N.D.P.S. Act, which though brings out the same conflict in view of certain provisions contained therein but is lending a new dimension that demands an answer through an incisive insight to the provisions of the Act despite the authoritative pron....
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....xtend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but may extend to two lakh rupees : Provided that the Court may, for reasons to be recorded in the judgment, impose a fine extending two lakh rupees." ... ... ... 27A. Punishment for financing illicit traffic and harbouring offenders.- Whoever indulges in financing, directly or indirectly, any of the activities specified in subclauses (i) to (v) of clause (viii a) of section 2 or harbors any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees : Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees." Evidently, the Legislature had envisioned various sorts of offences under the Act to prescribe and afford different periods of investigation to the Investigating Officer. The very fact that it grants an immense flexibility of period to the investi....
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....utive Magistrate may take cognizance of any specified offence - (a) upon receiving a complaint of facts which constitute such offence ; (b) upon a police report of such facts ; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 191. Transfer on application of the accused.- When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf. STATE AMENDMENT(PUNJAB) In relation to the specified offences, section 191 of the Code shall be so read as if for the words, brackets and figures "clause (c) of sub-section (1) of section 190", the word figures and letter "section 190A" were substituted and for the word "Magistrate" wher....
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....ian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199,200, 205 to 211 (both inclusive) and 228 when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court, and upon its receipt by the Court, no further proceedings shall be taken on the complaint : Pro....
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....ases and not of persons." In State of Maharashtra v. Sharadchandra Vinayak Dongre and others 1995(1) S.C.C.42, it was observed by the Hon'ble Supreme Court as under :- "7. The purpose of the submission of the police report with the details as mentioned above, is to enable the Magistrate to satisfy himself whether on the basis of the report and the material filed along with the police report, a case for taking cognizance has been made out or not. After applying his mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the ofence is required to be taken, he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. Section 190(1)(b) Cr.P.C. provides that a Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offence." What flows from the above is 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 ....