The accused must apply for default bail during the statutory period to be entitled to it. The Chemical Examiner's report is essential in establishing the nature of contraband and must be included in the charge sheet under the NDPS Act.

JUDGMENT

Mukta Gupta, J. - The petitioner is in custody in case FIR No. 1203/2019 under Section 21(B) of the NDPS Act registered at P.S. Sultanpuri, Delhi. Case of the prosecution is that on 6th December, 2019, the petitioner was found to be in possession of 50 gms. of Heroin and 50 gms. of Heroin was recovered from the co-accused.

2. According to learned counsel for the petitioner, the alleged recovery from the petitioner being of a quantity less than the commercial quantity, the maximum punishment which could be awarded to the petitioner was upto 10 years'' imprisonment besides fine and thus, the charge sheet was required to be filed within 60 days and the Special Judge had no jurisdiction to remand the petitioner without charge sheet after 4th February, 2020. The charge sheet was not filed till 4th February, 2020, hence, according to the petitioner, he was entitled to bail under Section 167(2) CrPC. The petitioner was not represented by a lawyer engaged by him and the learned Trial Court though provided him with legal aid on the first day of remand before it i.e. 7th December, 2019, however, thereafter, no advocate appeared for the petitioner. As the petitioner was unrepresented by the legal aid counsel, he was not advised to file an application seeking statutory bail after expiry of the stipulated period of 60 days under Section 167(2)(a)(ii) CrPC and before the filing of the charge sheet. Admittedly, the charge sheet was filed on 13th February, 2020 and that too, without the FSL report which could have opined that the alleged recovery from the petitioner was of Heroin. Thereafter, the petitioner filed an application for regular bail which came up before the learned Special Judge on 22nd July, 2020 and was dismissed. Even in the said petition, from the impugned order dated 22nd July, 2020, it is not evident that the learned Trial Court considered the aspect of grant of default bail to the petitioner. Hence, the present petition seeks regular bail in view of the charge sheet not having been filed within the statutory period of 60 days under Section 167(2)(a)(ii) CrPC and no FSL report having been filed till the filing of the present bail petition, petitioner is entitled to bail as per the decisions in Ajit Singh @ Jeeta and Anr. Vs. State of Punjab, Criminal Revision No. 4659 of 2015 (Division Bench, Punjab & Haryana High Court), Gurpal Singh and Anr. Vs. State of Punjab, Crl.Revision 791/2016 (Punjab and Haryana High Court). The petitioner also seeks bail on merits.

3. The present petition came up for hearing before this Court on 6th August, 2020 when the grounds as noted above urged were raised by the learned counsel for the petitioner. Since proper reply was not filed on 19th August, 2020 and even on 28th August, 2020, the petition was listed and heard on 4 th September, 2020. Only on 4th September, 2020, for the first time, learned APP for the State submitted that the FSL report has been received and that supplementary charge sheet has been filed on 3rd September, 2020.

4. Be that as it may, the date on which the present petition was filed and notice was issued returnable for 19th August, 2020, no FSL report had been filed before the learned Trial Court.

5. The issues urged by learned counsel for the petitioner in the present petition are that admittedly, the charge sheet was not filed within the statutory period of 60 days and the petitioner having been prevented from filing an application seeking the default bail, for the reason, he was not represented by a lawyer, it was the bounden duty of the learned Special Judge to have informed the petitioner about his right of default bail as also to provide legal aid in which the learned Special Judge failed. It is further contended that even if the so called charge sheet was filed on 13th February, 2020, the same was incomplete charge sheet as one of the essential ingredients in the charge sheet was the requirement to show that the recovery from the petitioner was of a contrab