Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 707

IN THE HIGH COURT OF DELHI AT NEW DELHI
SWARANA KANTA SHARMA, J.
Arif Khan – Appellant
Versus
State (Govt. of NCT Delhi) - Respondent.
Crl.M.C. 2164 of 2023
Decided on : 18-04-2023

Advocates:
Advocate Appeared:
For the Appellant :Mr. Akshay Bhandari, Advocate.
For the Respondent: Mr. Manoj Pant, APP for the State along with SI Sonal Raj, P.S. Daryaganj.

The non-filing of FSL reports with the charge sheet in NDPS cases does not entitle the accused to default bail.

Headnote:
NDPS Act - Default Bail - Sections 21/29/61/85 - Summary of Acts and Sections: The court discussed the provisions of Section 167(2) of the Criminal Procedure Code and its applicability to the filing of charge sheets without FSL reports in NDPS cases. The court also referred to the decision in Mohd Arbaz v. State of NCT of Delhi and the observations made by the Hon'ble Supreme Court regarding the completeness of charge sheets filed without FSL reports. The court emphasized that the non-filing of FSL reports with the charge sheet does not fall within the ambit of Section 173(2) of the Cr. P.C. and does not entitle the accused to default bail.
Fact of the Case:

The petitioner sought release on regular bail in a case under the NDPS Act after being in judicial custody for 12 months. The charge-sheet was filed without the FSL report, and the petitioner argued for bail based on the incompleteness of the charge-sheet as per Cr. P.C. provisions.
Finding of the Court:

The court found that the petitioner was not entitled to default bail as the charge-sheet was filed within the time period as per law, and the quantity of contraband recovered was of a commercial nature, barring the petitioner from bail under Section 37 of the NDPS Act.
Issues: The main issue was whether the petitioner was entitled to default bail based on the filing of the charge-sheet without the FSL report, and the applicability of Section 167(2) of the Cr. P.C. to NDPS cases.
Ratio Decidendi: The court held that the non-filing of FSL reports with the charge sheet does not entitle the accused to default bail, as it does not fall within the ambit of Section 173(2) of the Cr. P.C. and the charge-sheet was filed within the stipulated time period.
Final Decision: The petition for default bail was dismissed, and the petitioner was not granted bail.

JUDGMENT :

Swarana Kanta Sharma, J.

The present petition has been filed under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1973 (hereinafter ‘Cr.P.C.’) seeking setting aside of order dated 17.03.2023 passed by learned Additional Sessions Judge/Special Judge, NDPS, Central, Tis Hazari Court (hereinafter ‘learned Special Judge’) where the prayer of petitioner for release on default bail was declined, and accordingly, the petitioner seeks his release on regular bail in FIR bearing no. 152/2022, registered at Police Station Daryaganj under Sections 21/29/61/85 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter ‘NDPS Act’).

2. The petitioner is stated to be in judicial custody since 26.03.2022 on the ground that he had been apprehended with 340 grams of contraband ‘morphine’ in his possession which is a commercial quantity. After completion of 180 days of his arrest, charge-sheet was filed by the Investigating Officer without FSL report.

3. Learned counsel for the petitioner states that petitioner has already undergone 12 months in judicial custody. It is stated that the charge-sheet in the present case has been filed without FSL result, and thus, the same would be termed as ‘incomplete’. It is argued that the charge-sheet and investigation be considered as to be not filed as per provisions of Cr. P.C. and within the time period stipulated therein, thereby entitling the petitioner to relief of bail in present case.

4. It is argued by learned counsel for petitioner that the Hon'ble Apex Court in Mohd Arbaz v. State of NCT of Delhi SLP (Criminal) No. 6876-6877/2022, arising out of order passed by a Coordinate Bench of this Court in Mohd. Arbaz v. State (NCT of Delhi), 2020 SCC OnLine Del 2542 in a similar case, has granted bail to the petitioners therein whose charge-sheets were filed without the FSL result.

5. Learned APP for the State, on the other hand, argues that the bail granted by the Hon'ble Apex Court in the aforesaid case was on grounds and circumstances which were different from the case in hand. It also stated that till the issue in question i.e. whether a charge-sheet filed without FSL report is complete or incomplete for the purpose of default bail is decided by the Hon'ble Apex Court, the prevailing law will cover the present case and the petitioner will not be entitled to bail, also because the judgment challenged therein has not been stayed by the Hon'ble Apex Court.

6. Learned counsel for the petitioner states that the petitioner may be granted bail till the issue in question is decided by the Hon'ble Supreme Court.

7. I have heard arguments and have also gone through the case file.

8. As per the case of prosecution, the petitioner, along with two other co-accused, was apprehended on 26.03.2022 at the instance of a secret informer near N.S. Marg/Ansari Road, Mahavir Vatika. Upon his search after compliance of statutory provisions, a plastic box was recovered from his bag, containing 340 grams of morphine/smack, which is a commercial quantity. The contraband was tested with the NDPS Testing Kit at the spot and the same was also sent to FSL for detailed analysis, report of which is still awaited. On the basis of Call Detail Records and disclosure of present petitioner, two more accused persons were arrested on 13.04.2022.

9. The main grievance of petitioner is that the learned Special judge had erroneously declined the relief of default bail to him. Learned counsel for the petitioner had primarily relied upon the decision in Mohd. Arbaz (supra) where the Hon'ble Apex Court has been pleased to observe as under:

“In all these petitions the question that arises for consideration is relating to the completeness of the charge sheet in accordance with law if the same is filed without the CFSL Report. The matter would require detailed consideration. In the meantime, all parties to complete their pleadings.

For the present, though the issue of default bail is to be

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