IMPORTANT POINTS
(1) Statutory bail – Accused under NDPS Act are also entitled to be informed of their such right by Special Judge – If charge-sheet is filed within statutory period of 180 days or within extended period under Section 36A(4) without chemical examination report, charge-sheet submitted shall be deemed to be incomplete one and accused has right to be released on statutory default bail.
(2) In a case under NDPS Act, most important and vital piece of evidence is chemical report – If forensic laboratory returns a report that seized articles do not come within purview of NDPS Act, prosecution case would fall flat.

JUDGMENT

Apurba Sinha Ray, J.—The petitioner claims that he was arrested on 21.02.2024 with some contraband articles being commercial quantities and charge sheet was filed without FSL Report on 16.08.2024. 180 days expired from his arrest on 19.08.2024. The chemical examiner directly sent the Forensic Science Laboratory Report (‘the FSL Report’ in short) to the Trial Court on 26.09.2024 and the present petitioner filed a statutory bail application on 27.09.2024. The concerned I.O. submitted supplementary charge sheet along with FSL Report on 30.10.2024.

2. According to the learned counsel, Mr. Soumyajit Das Mahapatra that the FSL Report cannot be directly sent to the Trial Court by the chemical examiner and the same cannot automatically become part of the charge sheet. The learned counsel has submitted that according to section 190(1)(b) of Cr.P.C. the Learned Trial Court may take cognizance of any offence on the basis of police report. Section 173(2)(i) of Cr.P.C. prescribes that as soon as the investigation is complete, officer-in-charge shall forward the report to the Magistrate for taking cognizance of the offence on a police report as per the form prescribed by the State Government. The learned counsel has relied upon the judicial decision of King Emperor Vs. Khwaja Nazir Ahmad reported in 1944 SCC OnLine PC 29 wherein it was observed that the functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case.

3. The learned counsel has also referred the decision of Rakesh Kumar Paul Vs. State of Assam reported in (2017) 15 SCC 67 in support of his contention that the petitioner can file bail petition before submission of the charge sheet. In matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical.

4. The learned counsel has also referred to the judicial decision of M. Ravindran Vs. Intelligence Officer, Directorate of Revenue Intelligence, reported in (2021) 2 SCC 485 wherein the Hon’ble Apex Court observed that once the right to default bail has become indefeasible by filing application when right accrues, the court has to release him on bail. Right to default bail is an integral part of personal liberty against unlawful and arbitrary detention under Article 21.

5. The learned counsel has also drawn our attention to the judicial decision reported in 2023 SCC OnLine Cal. 313 (Subhas Yadav Vs. State of West Bengal) and also the judicial decision reported in 2023 SCC OnLine Cal 2463 (Rakesh Sha Vs. State of West Bengal) in support of his contention that the right of the accused to statutory bail upon expiry of the statutory period, is an incomplete one till he avails of his right by seeking statutory bail either by way of an application or even by oral prayer. Further filing of charge sheet without examination report or FSL Report in relation to an offence under the NDPS Act, is an exercise in futility and resist the presumption of I.O. filing a cipher only for the sake of closing the first window of the 180 days under the proviso to 36A(4) of the Act. The learned counsel has again drawn our attention to the case law reported in 2021 SCC OnLine Cal 3788 (Chandi Charan Garani & Ors. Vs. State of West Bengal) wherein the learned Single Judge of this Hon’ble Court adopted the view expressed in the case law of Pradip Churiwala Vs. Dilip Kumar Nemani reported in 2003 C Cr LR (Cal) 249 wherein it was stated that it is also the principle embedded in section 190 of the Criminal Procedure Code that the word ‘may take cognizance’ should be read as must as it has some mandatory aspect. At the same time it requires a great exercise of judicial mind. The learned counsel has relied upon one unreported decision of this court be