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2020 (11) TMI 1114
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....petitioners are being prosecuted for committing an offence under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 2012 (hereafter the 'NDPS Act'). They claim it cannot be asserted that the substance allegedly recovered from them was a narcotic drug or psychotropic substance without a Chemical Examiner's report indicating the same. This being the foundation of the allegation against the petitioners, a police report not accompanied by a Chemical Examiner's report cannot be considered as a report under Section 173(2) of the Cr.P.C. The Chemical Examiner's report was furnished before the learned Special Court on the same date when the applications filed by the petitioners were taken up for consideration. Nonetheless, the petitioners claim that they are entitled to bail in default under Section 167(2) of the Cr.P.C. as their respective applications seeking the same were filed prior to the Public Prosecutor placing the FSL Report before the Special Court. 4. In view of the above, the following questions fall for consideration of this Court: (i) Whether in a case of commission of an offence punishable under the provisions of the NDP....
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....n five kgs of light coloured brown powder each. In addition, 15 kgs of the said similar looking substance was also recovered from the vehicle. It was tested on a field-testing kit and the same yielded a positive result for heroin. 5.2. The petitioners were arrested. Thereafter, on 17.12.2018, the FIR in question (FIR No. 150/2018), under Sections 21 and 29 of the NDPS Act was registered with PS Special Cell. 5.3. On 27.05.2019, a police report under Section 173(2) of the Cr.P.C. was filed with the Special Court. The said report was not accompanied by the Chemical Examiner's report confirming that the substance recovered from the petitioners and their vehicle was heroin. 5.4. The statutory period of one hundred and eighty days for completion of the investigation under Section 36A(4) of NDPS Act read with Section 167 of the Cr.P.C. expired on 15.06.2019. 5.5. On 29.07.2019, the petitioners filed an application seeking bail in default under the provisions of Section 167(2) of the Cr.P.C. This was premised on the basis that the investigating agency had failed to file the complete police report under Section 173(2) of the Cr.P.C. within the stipul....
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.... is founded on the basis of recovery of narcotic drug or psychotropic substance, if the Chemical Examiner's report indicating the nature of substance recovered is not placed before the Court. He submitted that there may be other offences where the Chemical Examiner's report or an expert examiner's report may not be of a pivotal importance and the cognizance of the offence can be taken without reference to the said report. However, in a case relating to an offence punishable under the NDPS Act, which is founded on the basis of recovery of contraband, a Chemical Examiner's report would be necessary as the Court would not be in a position to take cognizance of the said offence without the same. He referred to a decision of the Division Bench of the Punjab and Haryana High Court in Ajit Singh @ Jeeta and Anr. v. State of Punjab: Crl. Rev. No. 4659/2015, decided on 30.11.2018; a decision of the Division Bench of the Bombay High Court in Sunil Vasantrao Phulbande and Anr. v. State of Maharashtra: (2002) 3 Mah LJ 689 and a decision of this Court in Nitin Nagpal v. State : 2006 (90) DRJ 745, in support of his contention. 8. Mr. Nayak, learned APP for the State countered ....
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....ther such a chargesheet would qualify to be termed as a police report in terms of Section 190(1)(b) of the Cr.P.C. to enable a Magistrate to take cognizance of the offence disclosed therein. The Court referred to the decision of the Supreme Court in Noor Khan v. State of Rajasthan: AIR 1964 SC 286 and observed that it was deducible from the said decision that it is not incumbent upon the investigating officer to reduce in writing the statements of witnesses. The Court held that he may merely include their names in the list of witnesses in support of the prosecution's case when submitting the chargesheet. The Court reasoned that surely if the chargesheet thus submitted would be complete as enabling the Magistrate to take cognizance of the offence, there is no rational basis for holding that a similar chargesheet would not be a police report of the requisite kind if the statement of witnesses, which although recorded under Section 161(3) of the Cr.P.C. are not appended to the report, either by design or by inadvertence. 11. The Court further reasoned that the contention that a chargesheet would be incomplete if not accompanied by the report of experts such as chemical analyst,....
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....cal 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. We emphasize on the stringent aspect of the N.D.P.S. Act which would compellingly persuade us to take the aforesaid view. Without determining the nature and content of the contraband, it would be draconian to propel an accused into the throes of a trial. The liberty of an individual would constantly be imperiled at the hands of dubious officials of the police who may venture to falsely implicate a person. It is for this reason that we would unhesitatingly conclude that the Chemical Examiner's report is an essential; integral and inherent part of the investigation under the N.D.P.S. Act as it would lay the foundation of an accused's culpability without which a ....
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....der section 173(2) and (5) of the Code particularly when material is sufficient for the Magistrate to take cognizance of the offence as per provisions of the Code. However, in the instant case, the Chemical Analyser's report is the basis for deciding whether substance which is seized during raid is Ganja or not, which would determine whether provisions of the Narcotic Drugs and Psychotropic Substances Act are attracted or not. The Magistrate in such situation undoubtedly cannot proceed to take cognizance of the offence for want of complete charge-sheet/report and, therefore, in the present case, the charge-sheet/report which is submitted by the Police in the Court on 4-8-2001 cannot be said to be a charge-sheet/report as contemplated under section 173(5) of the Code." 14. A similar view was expressed by the Single Judge of the Bombay High Court in Ranjeet Manohar Machrekar v. State of Maharashtra, Crl. Bail Appln. No. 509/2014. In Manik Sahebrao Chougule v. State of Maharashtra: Crl. Bail Appln. No. 241 of 2017, decided on 23.03.2017, another bench of the Bombay High Court followed the aforesaid decision and held as under: "6. In a similar case, Ranjeet Manohar Mach....
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.... or not. In the absence of CFSL report, the trial Court cannot take cognizance of the offence and in the absence of Chemical Analysis Report, the charge sheet/challan cannot be said to be completed. Failure to file complete charge-sheet within a prescribed period confers on the accused right to be released on bail and the court is not competent to take cognizance of the offence on incomplete charge-sheet. Charge sheet is not complete unless it is accompanied by requisites contemplated under Section 173(5) of the Code. 13. In view of the above facts, it is clear that the charge cannot be framed on the basis of incomplete report and the final report, without having any FSL, narco-analysis and Chemical Examiners' Report is incomplete. The Court is to proceed for framing of charge only after receiving the same." 16. In Rafael Palafox Garcia v. Union of India and Anr.: 2008 Vol. 110 (9) Bom. L.R. 3392, a Single Judge of the Hon'ble Bombay High Court did not accept the view that a final report would be incomplete if not accompanied by a Chemical Examiner's report in a case relating to offences under the NDPS Act. The Court distinguished the decision of the Divisio....
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....e nature and identity of the recovered substance, without any report as to the chemical analysis of the said substance, is sufficient to establish the nature and composition of the substance recovered. 19. In Taj Singh (supra), the Division Bench of this Court held that even if an investigating officer had not received the report of the CFSL, so far as his job of collecting the evidence is concerned, the same was over the moment he had collected the exhibits and dispatched the same for the opinion of the CFSL. The Court reasoned that in this view, it would not be correct to state that a police report which did not include the CFSL Report would be an incomplete one. The Court found support in this view from the decision of the Full Bench of Punjab and Haryana High Court in Mehal Singh (supra). Mr. Nayak had also stressed on this decision and contended that this view was binding on this Court. However, it is seen that the decision in Taj Singh's (supra) case was not rendered in the context of the NDPS Act. 20. There is a material difference in other cases relating to offences under the IPC or other statutes and certain cases relating to the NDPS Act, where the allegation of....
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....e substance recovered was Ganja or not. If it was Ganja then the provisions of the NDPS Act would apply and if it was not a Narcotic Drugs or a Psychotropic Substance then the provisions of the NDPS Act would not apply. Therefore, the result of the Chemical Analysis was crucial to the very foundation of the case for the prosecution. Without such a report it could not be ascertained whether an offence had been committed at all and, therefore, the Magistrate was hindered in taking cognizance of such an offence under the NDPS Act. It is also material to note that in that case the Court observed that there may be situations where documents of a formal nature which did not come in the way of the Magistrate taking cognizance are not filed along with the charge-sheet yet the charge-sheet would not be construed as being incomplete. In any event, no further debate is necessary on this aspect of the matter insofar as this Court is concerned inasmuch as the issue stands settled by the Division Bench decision in the case of Taj Singh (supra) wherein the Division Bench concluded that a police report which did not include the CFSL report would still be a complete report as envisaged in Section 1....
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.... examined when the report was filed. The reason for calling it incomplete is not discernible. But it is safer to assume from the reading of the judgment that the investigation was not complete. Thus the report as envisaged under Section 173(2) of the Code could not have been filed. 16. It is unnecessary for us to notice other judgments cited by the learned Counsels in support of their plea that the investigation in a case like the present is to be held to be incomplete. In our view the Supreme Court decision in Tara Singh's case (supra) holding, inter alia, that a police report which is not accompanied by the expert's opinion, is to be held to be complete report as long as the witnesses who are acquainted with the circumstances of the case have been examined, continues to be law in spite of amendments in Section 173 of the Code. 17. Now to advert to the main plea. It is contended that for offences under the NDPS Act, the report under Section 173(2) of the Code, which in law is complete (the Investigating Officer having carried out all his mandatory duties), is to be considered "incomplete" in the absence of the opinion of the expert. In our view the submis....
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....as proper and valid, no order releasing the petitioners on bail under Section 167(2) of the Code was required to be passed. 23. In Babu v. State: Bail Appln. No. 2075 of 2020, decided on 25.09.2020, a Coordinate Bench of this Court had referred to the aforesaid decision and observed as under: "18. Though this Court is of the view that the decision of the Division Bench of the Punjab and Haryana High Court is an appropriate opinion in relation to cognizance of an offence under NDPS Act without the FSL report being an illegality, however, bound by the Division Bench decision of this Court, judicial discipline mandates this Court to follow the same. Consequently, in view of the decision of the Division Bench of this Court in Kishan Lal v. State (supra), it is held that the petitioner is not entitled to grant of bail under Section 167(2) CrPC for non-filing of the FSL report along with the charge sheet." 24. This Court concurs with the view expressed by the Coordinate Bench of this Court in Babu (supra). Thus, the view expressed by the Division Bench of Punjab and Haryana High Court in Ajit Singh @Jeeta (supra) and the view expressed by the Bombay High Court in Sunil Vas....
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....cused before such Magistrate. The Magistrate before whom the accused is produced has the power to remand the accused to custody in terms of Section 167(2) of the Cr.P.C. The said sub-section is set out below: "167(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-- (a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding. (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or i....
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....der whether the challan has been filed within the maximum period as prescribed or whether the said period has been extended under Clause (bb) of Sub-section (4) of Section 20 of the TADA. The court would not be concerned with any other consideration such as the gravity of the case, seriousness of the offence or character of the offender. 31. In a subsequent decision rendered in the case of Sanjay Dutt v. State: (1994) 5 SCC 410, the Constitution Bench of the Supreme Court further clarified that the right accruing to the accused for seeking bail in default under Section 167(2) of the Cr.P.C. would only be enforceable prior to filing of the chargesheet. The same would not survive or remained enforceable once the chargesheet is filed. The relevant extract of the said decision is set out below: "48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or re....
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....4 SCC (Cri) 1087: JT (1994) 4 SC 255], accordingly, and if it gives a different indication because of the final order made therein, we regret our inability to subscribe to that view. **** **** **** 53. As a result of the above discussion, our answers to the three questions of law referred for our decision are as under: (1) In the prosecution for an offence punishable under Section 5 of the TADA Act, the prosecution is required to prove that the accused was in conscious 'possession', 'unauthorisedly', in 'a notified area' of any arms and ammunition specified in columns 2 and 3 of Category I or Category III(a) of Schedule I to the Arms Rules, 1962 or bombs, dynamite or other explosive substances. No further nexus with any terrorist or disruptive activity is required to be proved by the prosecution in view of the statutory presumption indicated earlier. The accused in his defence is entitled to prove the non-existence of a fact constituting any of these ingredients. As a part of his defence, he can prove by adducing evidence, the non-existence of facts constituting the third ingredient as indicated earlier to rebut the statutory presu....
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....hat stage." 32. In State of M.P. v. Rustam And Ors.: (1995) Supp. 3 SCC 221 the Court referred to the decision of the Constitution Bench in Sanjay Dutt's (supra) case and held that "the court is required to examine the availability of the right of compulsive bail on the date it is considering the question of bail and not barely on the date of the presentation of the petition for bail". 33. As noted above, the Supreme Court in Sanjay Dutt's (supra) case had held that indefeasible right accruing to the accused would be only enforceable prior to filing of the chargesheet and would not survive on the chargesheet being filed "if already not availed of". 34. Apparently, this was construed by the Supreme Court in Rustam's (supra) case to mean that the right of bail should survive on the date when that question is considered by the Court and not on the date on which the petition for bail in default is presented. Thus, according to this decision, the question whether the right to default in bail would survive would have to be tested on that point of time when that application was considered by the Court and not when it was filed. 35. In Mohamed Iqbal Madar Sheikh v. ....
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....lative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression "availed of" to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression "availed of" is interpreted to mean that the accused must factually be released on bail, then in a given case ....
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....ought on to the statute-book. In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused. Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section (2) of Section 167, any further detention beyond the period without filing of a challan by the investigating agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution. There is no pr....
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....an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate. 4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated. 5. If the accused is unable to furnish the b....
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.... of Maharashtra [(1996) 1 SCC 722: 1996 SCC (Cri.) 202]." [emphasis supplied] 37. In Union of India v. Nirala Yadav: (2014) 9 SCC 457, the Supreme Court analysed various earlier decisions rendered by it and after referring to the decision of Mohanlal Acharya (supra), held as under: "28. ....When the charge-sheet is not filed and the right has ripened earning the status of indefeasibility, it cannot be frustrated by the prosecution on some pretext or the other. The accused can avail his liberty only by filing application stating that the statutory period for filing of the challan has expired, the same has not yet been filed and an indefeasible right has accrued in his favour and further he is prepared to furnish the bail bond. Once such an application is filed, it is obligatory on the part of the court to verify from the records as well as from the Public Prosecutor whether the time has expired and the charge-sheet has been filed or not or whether an application for extension which is statutorily permissible, has been filed. If an application for extension is filed, it is to be dealt with as has been stated in Sanjay Dutt [(1994) 5 SCC 410: 1994 SCC (Cri) 1433].....
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...., therefore, did not go into the wider question as to whether the non-compliance with Section 160(1) including its proviso would enable the appellant to apply for release on bail. It may be stated that the prosecution has produced and relied upon written intimation dated 10-10-2008 and entries from the station diary to show that Section 160 CrPC was substantially complied with but it is not necessary to refer to the same in detail as this Court broadly agrees with the view taken by the High Court mentioned above." 40. The Supreme Court further noted that the view expressed by the Court in Pragyna Singh Thakur (supra) was somewhat similar to the view expressed by B.N. Agrawal J. in his dissenting opinion in Uday Mohanlal Acharya (supra). After observing the same, the Court, in Nirala Yadav (supra) concluded as under: "46. …. As long as the majority view occupies the filed it is a binding precedent. That apart, it has been followed by a three-Judge Bench in Sayed Mohd. Ahmad Kazmi's case. Keeping in view the principle stated in Sayed Mohd. Ahmad Kazmi's case which has based on three-Judge Bench decision in Uday Mohanlal Acharys's case, we are obliged to c....
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....her does not dispose of such application before the chargesheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted." 44. In M. Ravindran v. Intelligence Officer: Criminal Appeal No. 699 of 2020, decided on 26.10.2020, the accused filed an application for seeking default bail at 10:30 am of the 181st day of his arrest (that is immediately after the court opened). The Public Prosecutor filed an additional complaint on the same date at 4:25 pm. The Supreme Court held that the accused had availed of his indefeasible right to a default bail before the charge sheet was filed and therefore was entitled to the same. 45. In view of the above, the impugned order, which is premised on the basis that the court would have to consider the question of default bail at the point when the application is taken up for consideration is unsustainable. As explained by the Supreme Court i....