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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Smt. V. K. TAHILRAMANI, J.
Rafael Palafox Garcia- Appellant
Versus
Union of India & Anr.- Respondents
Criminal Application No.20l5 of 2008
Decided On: 25th September, 2008.
Criminal Procedure Code, 1973 - Section 173(2)-Production of additional documents-Permissibility of.-Though the Investigating Officer is required to produce all the relevant documents at the time of submitting the charge-sheet, at the same time there is no specific provision due to which no additional documents can be produced subsequently by the investigating agency.
Criminal Procedure Code, 1973 - Section 173(8)-Further investigation-Permissibility of.-Indisputably, the power of the Investigating Officer to make a prayer for making further investigation in terms of sub-section (8) of Section 173 is not taken away only because a charge-sheet under sub-section (2) thereof has been filed. A further investigation is permissible even if order of cognizance of offence has been taken by the Magistrate.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 29, 25-A, 9-A and 37 - Code of Criminal Procedure, 1973, Section 167(2)(a)(ii) - Non-filing of report of Chemical Analyst with charge charge-sheet - Held - From the material available before Court, it was clear that an offence had been committed under Section 25 of NDPS Act - Case would not covered be under Section 37 of NDPS Act - Concept of controlled substance specially under Section 2(vii-a) and 2(vii-d) of Act and notification issued by Government specifying small quantities and commercial quantities also shows that the concept is peculiar to Narcotic Drugs and Psychotropic Substances - Quantity seized is less - Court is inclined to release applicant on bail. - The charge-sheet is an intimation to the Magistrate that upon investigation into a cognizable case the Investigating Officer has been able to procure sufficient evidence for the Court to enquire into the offence and the necessary information is being sent to the Court. A charge-sheet is a final report within the meaning of sub-section (2) of Section 173 of the Code. It is filed so as to enable the Court concerned to apply its mind as to whether cognizance of the offence thereupon should be taken or not. In this case from the material available before the Court on 13.2.2008, it was clear that an offence had been committed under Section 25 of the NDPS Act and the applicant was involved in the offence.
In cases of offences under Section 19 or 24 or 27-A and offences involving commercial quantity an accused would not be released on bail unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence. The present applicant is facing prosecution for charges under Sections 25-A and 29 read with 9-A of the NDPS Act and hence obviously his case would not be covered under Section 37 of the NDPS Act. Moreover, as far as Section 9-A which deals with controlled substance is concerned, there is no categorisation of small quantity or commercial quantity.
Section 9-A of the NDPS Act deals with the power to control and regulate cont rolled substance. "Controlled substance" means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any international convention, by notification in the official Gazette, declare to be a controlled substance.
A controlled substance is not necessarily used only to make narcotic drugs or psychotropic substance, but, it is a versatile substance which can be used in manufacturing of various things including innocuous medicines by the pharmaceutical industry. As far as controlled substances are concerned, there is no provision for minimum term of imprisonment unlike Sections 19, 24 and 27-A of the NDPS Act.
There is extensive amendment introduced in NDPS Act. The offence falling under Section 9-A read with Section 25-A is punishable with imprisonment which may extend to 10 years and also fine which also may extend to Rs.1 lakh. There was an embargo on the powers of the Court in granting bail under the old provisions of Section 37 (1)(b) of the Act. From Section 37(1)(b) the term "imprisonment of 5 years or more" has been deleted and substituted by "for offence under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity", the case of the applicant is no more covered by Section 37(1)(b) of the Act. The concept of commercial quantity does not apply to controlled substance in view of the provisions relating to commercial quantity specially Section 2(vii-a) and Section 2(vii-d) of the Act and the notification issued by the Government specifying the small quantities and commercial quantities also shows that this concept is peculiar to Narcotic Drugs and Psychotropic Substances.
Heard the learned Counsel for the Applicant and the learned Counsel for the respondent - NCB.
2. The applicant is seeking bail in NDPS Special Case No.6 of 2008 of NCB pending before the Special Judge for NDPS cases, Thane. The said case is under Section 29 r/w. 9-A and 25-A of the Narcotic Drugs and Psychotropic Substances Act, 1985.
3. The prosecution case briefly stated is that specific information was received that one Shahnawaz Khan with the help of two persons including the applicant are manufacturing pseudo-ephedrine which is a controlled substance at Siddiqui Farm House in Thane. When the officers reached the said place, they found the present applicant along with others present there and 290 kgs. of pseudo-ephedrine which is a controlled substance came to be seized from the said place. Prior to seizure, tests were conducted by field test kit by taking small quantity from each packet. The said tests answered positive for presence of pseudo-ephedrine. The applicant accused came to be arrested on 19.12.2007. He preferred an application for bail before the Special Court. The said bail application came to be rejected by order dated 29.3.2008. Hence, this application.
4. Two grounds were raised by the learned Counsel for the applicant. The first ground is that at the time of filing of charge-sheet the C.A. report was not filed. Thus an incomplete charge-sheet was filed. At the time of filing of charge-sheet as the C.A. report was not filed, there was no material before the learned Judge to come to the conclusion that the substance seized was pseudo-ephedrine and hence the Court could not have taken cognizance of the said case.
5. In order to appreciate the above contention, it would be necessary to give a few dates. The applicant came to be arrested on 19.12.2007. The charge-sheet came to be filed on 13.2.2008. As the offence is made punishable under Section 25-A admittedly the charge-sheet would have to be filed within 60 days i.e. approximately on 19.2.2008. Though, the charge-sheet was filed on 13.2.2008 at the time of filing charge-sheet, no C.A. report was filed and the C.A. report dated 28.3.2008 was produced before the Court on 29.3.2008. The bail application preferred by the applicant came to be rejected on 29.3.2008.
6. It is contended by the learned Counsel for the applicant that since the offences registered against the applicant are punishable with a term which may extend to 10 years, the case of the applicant would fall within the ambit of section 167(2)(a)(ii) of the Code and the accused cannot be detained in custody beyond the period of 60 days from the date of first remand of the applicant i.e. 19.12.2007 if the charge-sheet is not filed within the said period. It is contended that the prosecution ought to have filed the charge-sheet as contemplated under Section 173(2) and (5) of the Code within a period of 60 days. However, in the instant case, though the charge-sheet is filed by the prosecution on 13.2.2008 i.e. within 60 days from the date of first remand of the applicant, the same being incomplete as it was not accompanied with the documents contemplated under sub-section (5) of section 173 of the Code, cannot be treated as a charge-sheet/report, which would empower the Court to take cognizance of the offences and hence applicant is entitled to be released on bail in view of provisions of section 167(2) of the Code.
7. Thus, it was submitted that when the charge-sheet was filed as the C.A. report was not filed, it amounted to filing of an incomplete charge-sheet which cannot be said to be a charge-sheet within the meaning of Section 173(5) of Cr.P.C. and as the charge-sheet, as contemplated under Section 173 of Cr.P.C. was not filed within the stipulated period of 60 days a right accrued to the accused to seek release on bail. In support of this contention, reliance was placed on a decision of a Single Judge of this High Court in the case of Sunil Vasantrao Phulbande and another Vs. State of Maharas
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