The Court held that a chargesheet is not incomplete merely because it does not contain the FSL report, that a field test is sufficient to establish the nature of the substance and that it is not necessary to subject the whole contraband to forensic analysis, that the quantity of the contraband is commercial quantity if it exceeds the specified limit prescribed under the NDPS Act, and that the arrest of a woman before sunrise is illegal if the police have not complied with the requirements of section 46 of CrPC.

JUDGMENT

Dama Seshadri Naidu, J. - Introduction:

There are two bail applications. Arrested for the offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act"), a man and a woman seek their release on various grounds. They have pleaded that (a) without an FSL Report, the chargesheet is incomplete, attracting Section 36A (4) of the Act; (b) that 'field test' is inadequate and suffers from an element of departmental bias; (c) that the whole contraband must be subjected to forensic analysis to determine the nature of the substance and the quantity as well; and (d) that a woman's arrest before sun rise offends section 46 of Cr PC?

2. Let us see which ground stands the judicial scrutiny.

Facts:

3. The applicant is the sole accused in Crime No. 7/2020, registered by the Anti Narcotic Cell Police Station, Goa. This crime attracts section 22(c) of the NDPS Act.

4. As to the facts in brief, on 12.3.2020 a team of ANC police personnel had been on the general patrolling. That night they received information during their rounds that the applicant had been trying to sell some contraband and deliver it to the prospective customer between 2.30 and 3.00 am. As the information was sudden and unexpected, they did not have the time to comply with the statutory mandate under Section 42 of the NDPS Act.

5. Therefore, they proceeded to the applicant's residence and apprehended him in his house with about 400 tablets of the substance on the table, believably, kept ready to be delivered. This happened at 2.25 am, on 12.3.2020. The crime registered, the applicant was arrested and then sent in judicial remand.

6. As it turns out, when the police seized the contraband, they conducted the field test on a few tablets and found them to be ecstasy, which is a prohibited substance. Statutorily speaking, though 10 gms is a commercial quantity, all the 400 and odd tablets weighed over 185 gms. Thus, the contraband was treated as a commercial quantity. On 5 September 2020, the police chargesheeted the applicant. His initial attempts before the trial Court having failed, the applicant has filed this application for regular bail.

Submissions:

Applicant in LD-VC-BA-76-2020:

7. Ms Caroline Collasso, the learned counsel for the applicant, has advanced elaborate arguments, much of which is technical. And technicality plays no small role in law - agreed.

(a) Incomplete Chargesheet:

8. Ms Collasso's principal plank of argument is that though the police filed the chargesheet, it is incomplete. And an in complete chargesheet cannot be treated as sufficient compliance with the statutory mandate under Section 36A (4) of the NDPS Act, which is analogous to Section 167 of Cr. PC.

9. To elaborate, Ms Collasso has submitted that the courts have repeatedly held that only to defeat the statutory deadline under either provision referred to above, the police file the chargesheet without the necessary particulars or necessary material. It must then be rejected as incomplete, lest it should amount to fraud on the statute or the Constitution. After reading out both section 167 Cr. PC and section 36A(4) of the NPDS Act, Ms Collasso has submitted that under section 167 of Cr.P.C. the maximum time for filing the charge sheet in grave offences is 90 days; under NDPS Act, it is 180 days: six months.

10. In other words, the police have sufficient time to complete the investigation and to file the chargesheet with all the details and the documents. Ms Collasso has pointed out that omitting every minute detail, indeed, cannot render the chargesheet incomplete. But any vital piece of information or document is missing, that will certainly affect the trial, including the charge being framed.

(b) Absence of Scientific Analyses:

11. Ms Collasso has, as her second plank, stressed that the fulcrum of the crime under NDPS Act is the nature of the drug. Unless the prosecution places sufficient scientific evidence on record in the chargesheet, the trial Court can frame no charge. Then