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IN THE HIGH COURT OF DELHI AT NEW DELHI
Vibhu Bakhru, J.
Mohd Arbaz - Appellant
Versus
State Of NCT Of Delhi - Respondent
Criminal Revision Petition No. 1219 of 2019, 1220 of 2019, 1222 of 2019; Criminal Miscellaneous Appeal No. 10252 of 2020
Decided On : 03-11-2020
The court held that a report under Section 173(2) of the Cr.PC is incomplete if not accompanied by a Chemical Examiner’s Report identifying the substance recovered. The court also held that the right to avail bail in default is availed of at the time when the application is filed and not when it is considered.
Fact of the Case:
The petitioners were arrested in a case under the NDPS Act. They filed applications for grant of bail in default under Section 167(2) of the Cr.PC, alleging that the investigating agency had failed to file a police report under Section 173(2) of the Cr.PC within the stipulated period of one-hundred and eighty days. The Special Court rejected their applications on the ground that the police report was filed within the stipulated period and that the applications were filed after the Public Prosecutor had placed the FSL Report before the Court.
Finding of the Court:
The court held that a report under Section 173(2) of the Cr.PC is incomplete if not accompanied by a Chemical Examiner’s Report identifying the substance recovered. The court also held that the right to avail bail in default is availed of at the time when the application is filed and not when it is considered.
Issues: 1. Whether a report under Section 173(2) of the Cr.PC is incomplete if not accompanied by a Chemical Examiner’s Report identifying the substance recovered? 2. Whether the right to avail bail in default is availed of at the time when the application is filed or when it is considered?
Ratio Decidendi: 1. The court held that a report under Section 173(2) of the Cr.PC is incomplete if not accompanied by a Chemical Examiner’s Report identifying the substance recovered. The court reasoned that in a case relating to an offence punishable under the NDPS Act, which is founded on the basis of recovery of contraband, a Chemical Examiner’s report evidencing the nature of the substance allegedly recovered would undoubtedly be at the core of the prosecution’s case. 2. The court held that the right to avail bail in default is availed of at the time when the application is filed and not when it is considered. The court reasoned that the accused has done whatever is expected of him for indicating that he is exercising his right by filing the application. Once having done so, the court is only required to examine whether the conditions as prescribed under Section 167(2) of the Cr.PC have been met when the application is made.
Final Decision: The court set aside the impugned order, but dismissed the applications moved by the petitioners before the said court seeking bail in default under the provisions of Section 167(2) of the Cr.PC.
JUDGMENT
Vibhu Bakhru, J. - The petitioners impugn a common order dated 20.08.2019, whereby their respective applications for grant of bail in default under Section 167(2) of Code of Criminal Procedure (hereafter the ''Cr.PC'') were rejected.
2. The petitioners'' claim that they are entitled to bail in default is premised on the assertion that the investigating agency has failed to file a police report under Section 173(2) of the Cr.PC within the stipulated period of one-hundred and eighty days. Although, it is not disputed that a report was filed within the stipulated period, the petitioners contend that the said report was incomplete as it was not accompanied by the report of the Chemical Examiner.
3. The petitioners are being prosecuted for committing an offence under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 2012 (hereafter the ''NDPS Act''). They claim it cannot be asserted that the substance allegedly recovered from them was a narcotic drug or psychotropic substance without a Chemical Examiner''s report indicating the same. This being the foundation of the allegation against the petitioners, a police report not accompanied by a Chemical Examiner''s report cannot be considered as a report under Section 173(2) of the Cr.PC. The Chemical Examiner''s report was furnished before the learned Special Court on the same date when the applications filed by the petitioners were taken up for consideration. Nonetheless, the petitioners claim that they are entitled to bail in default under Section 167(2) of the Cr.PC as their respective applications seeking the same were filed prior to the Public Prosecutor placing the FSL Report before the Special Court.
4. In view of the above, the following questions fall for consideration of this Court:
(i) Whether in a case of commission of an offence punishable under the provisions of the NDPS Act, which is founded on recovery of narcotic drugs and/or psychotropic substance, a police report under Section 173(2) of the Cr.PC can be considered as such if it is not accompanied by a Chemical Examiner''s Report with regard to the substance recovered, and;
(ii) Whether an accused would be entitled to bail in default under Section 167(2) of the Cr.PC where his application for such bail has been filed prior to the submission of the report under Section 173(2) of the Cr.PC but is taken up for consideration simultaneously with the said report being filed.
5. The relevant facts necessary to address the aforesaid controversy are set out below:
5.1 It is alleged that on 16.12.2018 at about 09:00 pm, information was received through a special messenger at the office of Special Cell, Sector- 7, Pushp Vihar, New Delhi - that one Abdul Rashid (petitioner in Crl. Rev. P. 1220/2019), who is a resident of Bhilwara, Rajasthan and deals in the business of narcotic drugs (Heroin) would arrive near Ambedkar Park, Sector 12, R.K. Puram, Ring Road on that date in a vehicle bearing Registration No. RJ 06 UA9729 between 09:00 pm and 12:00 pm. It was informed that he would be carrying heroin for its distribution in Delhi. After obtaining the necessary authorization, a raiding team was constituted. The raiding team so constituted positioned themselves near the spot (Ambedkar Park, Sector 12, R.K. Puram, New Delhi) at about 10:15 pm. It is alleged that at about 11:40 pm, a white coloured Ertiga car was seen approaching the spot. The driver of the said vehicle parked the same approximately ten meters from the spot. It was observed that the registration number plate of the said vehicle bore the same registration number as informed by the messenger. It was observed that there were three persons in the said vehicle including Abdul Rashid, who was driving the car. All the three persons came out of the car and stood outside. At that stage, Abdul Rashid handed over one bag each to two other persons who slung it on their back. At that stage, they were surrounded by the raiding team. The driver of the ve
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