The main legal point established in the judgment is that the pending FSL report does not render the charge sheet incomplete, and the determination of the accused's involvement in the offence is a matter for trial.

JUDGMENT

Suresh Kumar Kait, J. - Petitioner is accused in FIR No. 160/2019, registered at police station Special Cell, Delhi for the offences under Sections 21/29/61/85 Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth referred to as the "NDPS Act") and is aggrieved of order dated 05.10.2020 passed by the learned trial court vide which his application under Section 167(2) Cr.P.C. and Section 36 A(4) of the NDPS Act has been dismissed.

2. The present petition has been preferred on the ground that the petitioner was formally arrested in this case on 11.03.2020 and thereafter, charge sheet under Section 173(2) of the Code was filed in this case, however, petitioner's name was not there in the charge sheet. Vide order dated 20.03.2020, learned Special Court had directed the petitioner to give his voice sample for getting it matched with the intercepted call recordings available with the prosecution. Thereafter, on 26.08.2019 supplementary charge sheet was filed against the petitioner without the Central Forensic Science Laboratory (CFSL) report of the voice samples and no extension of time was sought by the prosecution for completion of investigation in terms of Section 36 A(4) of the NDPS Act. The statutory period of 180 days for completion of investigation and filing of complete charge sheet expired on 10.09.2020.

3. In aforesaid circumstances of the case, petitioner filed an application seeking bail under Section 167(2) Cr.P.C. read with Section 364(A) of NDPS Act on 23.09.2020. In the meanwhile, on 28.09.2020 report from CFSL was filed and vide impugned order dated 05.10.2020, the learned trial court dismissed petitioner's bail application while holding as under:-

"Heard. The main ground of statutory/ default bail u/s 167 (2) Cr.P.C. r/w section 36A (4) NDPS Act is that the incomplete charge-sheet was filed. The accused is alleged to be the main member of syndicate whose mobile was under interception. After the arrest of present accused, an application dated 20.03.2020 was filed by the IO to take the voice sample of the accused Mehboob Rehman, and vide order dated 20.03.2020 this court allowed the said application pursuant to which accused voice samples were recorded and report over the voice samples was prepared on 09.09.2020 and filed before this court on 28.09.2020 by the IO. Though the FSL report is found to be filed after filing of this application and completion of 180 days of investigation but the charge-sheet cannot be held to be incomplete because of the pendency of FSL report over voice sample as preparation of report on voice sample is not in the hands of IO. The judgments as relied by Ld.Addl. PP for the State are squarely applicable in present case. Accordingly, the present application has no merits and hence, dismissed. "

4. At the hearing, the learned senior counsel for petitioner submitted that the Hon'ble Supreme Court in Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer, NCB and Anr., (2009) 17 SCC 631 has held that provisions of Section 36 A(4) NDPS warrant strict compliance and since investigation in this case was not completed in time and no extension in terms of aforesaid provisions of law was obtained, petitioner's detention in jail is illegal.

5. Learned counsel also relied upon a decision of this Court in Nitin Nagpal Vs. State,2006 SCCOnLineDel 704 wherein it is held that if Chemical Analyser's report is the foundation to a case, in the absence thereof, cognizance cannot be taken and therefore, non filing of FSL report within the statutory period mandated, gives indefeasible right to the petitioner under Section 167(2) of the Code.

6. Reliance was also placed upon decision of Constitution Bench in K. Veeraswami Vs. UOI & Ors., (1991) 3 SCC 655 to submit that if charge sheet is filed, it would be deemed to be complete if accompanied with all the statements and documents as contemplated in Section 173(5) of the Code and since the present case is solely based upon CFSL report of voice s