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BOMBAY HIGH COURT
M.M. Nerlikar, J.
Ashish Prakash Walke – Applicant
versus
State of Maharashtra – Non-Applicant
Criminal Application [BA] No.376 of 2026
Decided on 20.4.2026
Counsel for the Parties:
For the Applicant:Shri R.M. Daga, Advocate
For the Non-applicant/State: Ms T. Udeshi, A.P.P.
IMPORTANT POINT
Bail – Application under Section 483 of BNSS /Section 439 of Cr.P.C. would be maintainable seeking bail under Section 187(3) of BNSS/Section 167[2] of Cr.P.C.
Headnote:
Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 483 – Narcotic Drugs and Psychotropic Substances, Act, 1985 – Sections 8(c), 22(c) and 29 – Bail – Whether application under Section 483 of BNSS /Section 439 of Cr.P.C. would be maintainable seeking bail under Section 187(3) of BNSS/Section 167[2] of Cr.P.C. – Even if accused has made written application or oral request to Magistrate, in respect of default bail, Magistrate is empowered to release him on bail considering parameters laid down under Section 187(3) of BNSS/Section 167[2] of Cr.P.C. – Even if bail application under Section 483 of BNSS /Section 439 of Cr.P.C. is preferred for claiming bail under Section 187(3) of BNSS/Section 167[2] of Cr.P.C., same would be maintainable – There is no bar as such – In case at hand, Forensic Science Laboratory report was not part and parcel of charge-sheet and it was simply tendered by moving application by police officer without resorting to procedure of filing supplementary charge-sheet, which amounts to following of strange procedure by Special Court under NDPS Act – Regular bail granted. (Paras 10, 11, 15 and 16)
Result: Criminal Application allowed.
ORDER (ORAL)
Heard the learned Counsel for the Applicant and the learned A.P.P. for the Non-applicant State.
2. The applicant came to be arrested in connection with Crime No.853/2025 registered with Police Station Ramnagar, District Chandrapur for the offence punishable under Sections 8(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances, Act, 1985, (NDPS).
3. The first information report came to be lodged by Sarvesh Belsare, a police official from Crime Branch Chandrapur alleging that on 27.10.2025 a secret information was received that the applicant along with his friend would be coming in a car at Mul Road, Near Forest Academy, Chandapur for selling M.D. Drugs. On this information, a white colour swift car was intercepted and on search, in the presence of the Gazetted Officer and panch witnesses, two plastic packets containing white coloured powder weighing 160 gms of MD (Mephedrone) was found. Other articles were also seized and based on this information, the first information report came to be lodged.
4. The learned Counsel appearing for the applicant submits that the charge-sheet was filed without Forensic Science Laboratory Report. He further submits that in order to defeat the right provided under Section 187(3) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS)/Section 167[2] of the Code of Criminal Procedure, charge-sheet was hurriedly filed, without any Chemical Analysis report. Therefore, without going into the merits of the matter, the applicant be released on regular bail. In support of this contention, he has relied on the judgment of Supreme Court in case of Jabir Kha VS State of Madhya Pradesh, (Criminal Appeal No.2088/2025), wherein the Supreme Court has considered the very same issue and had granted interim bail to the appellant therein.
5. My attention is invited to the order of High Court of Madhya Pradesh, at Indore, from which case, the above Criminal Appeal was preferred by Jabir Kha. He further submits that the issue is still pending before the Larger Bench of the Supreme Court, for consideration as to whether a charge-sheet without the FSL/Examiner’s Report in a NDPS case can be termed as an ‘Incomplete Report’ under Section 173 of Code of Criminal Procedure. It is submitted that there are divergent views of different High Courts, and therefore, the matter was referred by the Supreme Court to the Larger Bench and now it is under consideration. It is submitted that during the pendency of the issue, the Supreme Court has granted interim bail to the petitioners therein, which is to operate until further orders. He submits that even in the present case also, the Forensic Science Laboratory report was not part and parcel of the charge-sheet, however, it was filed afterwards i.e. on 08.12.2025, therefore, he prayed to grant bail to the applicant by allowing the application.
6. On the other hand, the learned A.P.P. vehemently opposes the application and submits that there are serious allegations against the present applicant as Mephedrone (MD) powder was found in his possession. She further submits that considering the allegations, the applicant does not deserve to be enlarged on bail. It is submitted that the contraband is of commercial quantity and rigour of Section 37 of NDPS would be applicable.
The learned A.P.P. further submits that the applicant cannot claim bail under Section 167[2] of the Code, by invoking the provisions or by applying for bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)/Section 439 of the Criminal Procedure Code. The parameters laid down under Section 187(3) of the BNSS/ Section 167[2] of the Code for grant of bail altogether stands on a different footing. Making an application under Section 483 of the BNSS/Section 439 of the Code, could not be construed as the accused availing of his indefeasible right to default bail, and therefore, it is submitted that if the accused is claiming bail under Section 187(3) of the BNSS/ Section 167[2] o
