TaxTMI 
TaxTMI 
2020 (11) TMI 1114
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.... 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 NDPS Act, which is founded on recovery of narcotic drugs an....
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....he 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 stipulated period of one hundred and eighty days as the report filed 27.05.2019 was not accompanied with t....
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....ndicating 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 the aforesaid submissions. He submitted that the decision in the case of Ajit Singh @ Jeeta (supra) cannot be considered g....
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.... 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, serologist, ballistic expert, fingerprint expert etc. stands on a weaker ground. 12. In Mehal Singh (supra), the Court also re....
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....te 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 Magistrate would not be enabled to form an opinion and take cognizance of the accused's involvement in the commission of offence under the Act." 13. The Division Bench....
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....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 Machrekar (supra) was prosecuted under section 20(b) of N.D.P.S. Act. When the chargesheet was filed, it was without report of the Chemical Analyzer. The learned Single Judge of this Court has consider....
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....e 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 Division Bench of the Bombay High Court in Sunil Vasantrao Phulbande's case (supra) on the ground that in that case there was no mention of the samples of the seized material being tested at the spot by using a Field Testing ....
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....), 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 commission of an offence is founded predominantly on the recovery of an illicit substance. Unless, there is evidence to establish the identity and nature of the said substance, it would not be feasible for any court to take cogni....
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....sult 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 173(2) of the Code. The case before the Division Bench was also one under Sections 307/302/34 IPC and Section 25 of the Arms Act, 1959. Distinct from the case before the Bombay High Court, the case before the Division Bench in Taj Singh a....
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....he 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 submission is entirely misconceived. Apparently the power of the Magistrate to take cognizance of offences upon police report is being related to the duty of the S.H.O. to forward a report on completion of investigation. The duty of the Investigating Officer under the....
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....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 Vasantrao Phulbande (supra),convinced this Court that the view of the Division Bench in Kishan Lal (supra) is binding. 25. In view of the above, the petitioners' contention that the report submitted on 27.05.2019 could not be construed as a report under Section 173(2) of the Cr.P.C. m....
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....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 imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person r....
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....er. 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 remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the ....
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....r 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 presumption. The accused is entitled to prove by adducing evidence, that the purpose of his unauthorised possession of any such arms and ammunition etc. was wholly unrelated to any terrorist or disruptive activity. If the accused succeeds in proving the absence of the said third ingredient, then his mere unauthorised possession of any such arms and ammunition etc. is punishab....
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....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. State of Maharashtra: (1996) 1 SCC 722, the Supreme Court observed as under: "12. …. If an accused charged with any kind of offence, becomes entitled to be released on bail under proviso (a) to Section 167(2), that statutory right should not be defeated by keeping the applications pending till the chargesheets are submitted, so that the right which had accrued is extinguished and defea....
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....rpose 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 where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also the so-called right accruing to the accused because of inaction on t....
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....t 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 provision in the Criminal Procedure Code authorising detention of an accused in custody after the expiry of the period indicated in proviso to subsection (2) of Section 167 excepting the contingency indicated in Explanation I, namely, if the accused does not furnish the bail. It is in this sense it can be stated that if after expiry of the period, an application for being released on bail is filed, and the acc....
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....d 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 bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to subsection (2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished. 6. The expression "if not alrea....
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....he 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]. That is the duty of the Court. This is the position of law as has been stated in Uday Mohanlal Acharya [(2001) 5 SCC 453: 2001 SCC (Cri) 760]." 38. The Court also referred to its earlier decision in Pragyna Singh Thakur v. State of Maharashtra: (2011) 10 SCC 445 and, inter alia, reproduced paragraph nos. 54 and 58 of the said decision, which are set out below: "54. There is yet another aspect of the matter. The right under Section 167(2) CrPC to be released on bail on....
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....ned 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 conclude and hold the principle laid down in Paragraph 54 and 58 of Pragyna Singh Thakur's case (which have been underlined by us) do not state the correct principle of law. It can clearly be stated that in view of the subsequent decision of a larger Bench that cannot be treated to be a good law. Our view finds support from the decision in Union of India and others v. Arviva Industries India Limited and Others." 41. In Alamkhan Umarkhan Jatmalek Jenjari Tal, Dashada Dist., Surendranagar and Anr. v. State of ....
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....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 in Nirala Yadav (supra), "the accused can avail his liberty only by filing an 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 the public prosecutor whether the time has expired and the charge-sheet is filed or not". The question whether an accus....