IMPORTANT POINT
Default bail – Petitioner does not get a right to demand for enlargement on the ground of default bail under Section 167(2) of Cr.P.C. merely because charge-sheet/final report filed by Police after investigation is without FSL report.

ORDER

M. Nagaprasanna, J.—The petitioner is before this Court calling in question proceedings in Crime No.30 of 2021 registered for offences punishable under Sections 25 and 3 of the Indian Arms Act, 1959 and Sections 8(c), 20(B)(ii)(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (‘the Act’ for short).

2. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:—

On 26-05-2021 on the basis of a report submitted by the 2nd respondent/Police alleging that on 25-05-2021 when they were on rounds, they received credible information that one accused involved in a dacoity case is on the run towards Moodabidri in a car and they followed the said car and found the car being driven by Mohamed Farooq. The petitioner was seated in the car and another Eicher Truck was moving towards Moodabidri. Both the vehicles were intercepted and the dickey of Skoda car was searched which resulted in unearthing of 60.60 Kgs. Of Ganja. The Eicher Truck which was also seized was searched and such search resulted in recovery of 157 Kgs. Of Ganja. It was seized and the accused were arrested and produced before the Police for further action. The Special Court under the Act on 26-05-2021 remanded the petitioner to judicial custody. On 20-11-2021 the Police after investigation filed a final report/charge sheet before the Court. The petitioner, after filing of the charge sheet before the Court, has now knocked on the doors of this Court in the subject petition, for quashment of entire proceedings in Crime No.30 of 2021 and seeks an interim prayer for release by grant of interim bail.

3. Heard the learned senior counsel Sri Hashmath Pasha appearing for the petitioner and Smt. K.P. Yashodha, learned High Court Government Pleader appearing for the respondents.

4. The learned senior counsel would submit that the petitioner is entitled to an interim bail as an interim order and later quashment of proceedings on one solitary ground viz., the charge sheet filed by the Police purportedly after investigation on 20-11-2021 is a defective charge sheet or an incomplete charge sheet, as the contraband substance has been sent for its test to the Forensic Science Laboratory and the report is yet to come. In the absence of the report, the substance that was seized is unidentifiable and, therefore, becomes a defective charge sheet. The Police have hurriedly filed an incomplete charge sheet only to get over the rigour of default bail under Section 167(2) of the Cr.P.C. He would submit that filing of the final report being in violation of Section 173(2) of the Cr.P.C., the petitioner is entitled to be released forthwith on bail. In support of his submissions, he would place reliance upon the judgments in the cases of:

(i) Union of India v. Bal Mukund and Others

(ii) Noor Aga v. State of Punjab and Another and

(iii) Chandru Kunthur Raghuvegowda v. State by Inspector of Customs CIU, Bengaluru.

5. On the other hand, the learned High Court Government Pleader would vehemently refute the submissions of the learned senior counsel and submit that mere non-filing of FSL report will not vitiate the charge sheet that is filed, as it can always be filed in the proceedings subsequently. Since contraband substance being Ganja it can be easily identifiable by structure and smell and FSL report is only a formality. She would place reliance upon a Division Bench judgment of the Bombay High Court in the case of Manas Krishna T.K. v. State and the judgment of the Apex Court in the case of Superintendent, Narcotics Control Bureau, Chennai v. R. Paulsamy, (2000)9 SCC 549.

6. I have given my anxious consideration to the submissions made by the learned senior counsel and the learned High Court Government Pleader and perused the material on record. In furtherance whereof, the only issue that falls for my consideration is,

“Whether the charge sheet/final report filed by the Police on 20-11-2021 is incomplete in the absence of FSL