IMPORTANT POINT
Bail – Rigour of Section 37 of NDPS Act has to be strictly construed since it operates against fundamental rights of personal liberty of a person

JUDGMENT :

1. Learned counsel for the petitioners argues that there are several contraventions of the NDPS Act and as such, the rigour of Section 37 of the NDPS Act is not applicable to the present case. It is contended that in the present case, the charge-sheet has been filed within the statutory period of 180 days, but without the CFSL report.

2. By placing reliance on a coordinate Bench judgment in the case of Rakesh Sha vs. State of West Bengal in CRM (NDPS) No. 552 of 2023, it is argued that where the material placed before the Court falls significantly short of the statutory mandate of the proviso to Section 36A(4) of the said Act, bail ought to be granted to the petitioner.

3. Learned counsel for the State vehemently opposes such submission and submits that the provisions of Section 36A of the NDPS Act have been duly complied with. By placing reliance on Section 36A(4), it is pointed out that CFSL report is not a mandatory constituent of the charge-sheet. For this purpose, learned counsel also places reliance on Section 173 of the Criminal Procedure Code, which specifically contemplates that Medical Examination Report only has to be filed in certain offences, which do not come within the purview of the present case.

4. Learned counsel also places reliance on a judgment of the Supreme Court reported at 1998 SCC (Cri) 1578 [Jagdish Budhroji Purohit vs. State of Maharashtra] for such proposition. The State also places reliance on a Special Bench judgment of this court rendered in the context to argue that the CFSL report is not mandatory for the purpose of consideration of grant of bail.

5. A perusal of the provisions of Section 36A(4) of the NDPS Act shows that for the purpose of offences punishable under Sections 19,24 or 27A or for offences involving commercial quantity, the references in Sub-section (2) of Section 167 of the Code of Criminal Procedure relating to 90 days shall be construed as 180 days. The proviso stipulates that if it is not possible to complete the investigation within the said period, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of 180 days.

6. Insofar as the judgment of the coordinate Bench is concerned, the same was rendered in the context of grant of bail where the Division Bench observed that filing of a charge-sheet without the examination report in relation to an offence under the NDPS Act is an exercise in futility and raises the presumption of the investigating officer filing a cipher only for the sake of closing the first window of 180 days under the proviso to Section 36A(4) of the Act. In such circumstances, the Court granted bail.

7. However, Section 36A(4) or its proviso do not specifically stipulate the requirement of filing of a CFSL report along with the charge-sheet.

8. But the ratio laid down in the coordinate Bench judgment also finds currency in the present context. Insofar as the Supreme Court judgment cited by the State is concerned, the same is irrelevant for the purpose of present adjudication. In the said case, only at the stage of trial and for considering the conviction and its justification, the Supreme Court observed that even if the Exhibits 61 to 67, including the report, were ignored, there was sufficient evidence on record to show that the contraband article was found from the appellant’s factory. The said ratio was laid down in the context of the said case, at the stage of conviction, which is the final stage of trial and has no bearing at the present stage of the present matter.

9. Insofar as the judgment of the Larger Bench of this Court is concerned, the same clearly indicates that the institutional laches on the part of the State in conduct of the investigation cannot be a deterrent for the Courts to detain the accused person further.

10. It was considered that in spite of the non-filing of the