IMPORTANT POINT
The main legal point established in the judgment is that no general directions have been given to release accused persons on default bail if the chargesheet is filed without an FSL report in NDPS cases.

JUDGMENT

Swarana Kanta Sharma, J.

1. The present petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 has been filed seeking the following prayers:

i. Set aside the impugned order dated 12.09.2023 passed by the learned Special Judge, NDPS, Tis Hazari Courts in FIR No. 152/2022, registered at Police Station Daryaganj, under Sections 21/29/61/85 of Narcotic Drugs and Psychotropic Substances Act, 1985 (`NDPS Act').

ii. Release the applicant on default bail in the aforesaid FIR.

2. Briefly stated, the facts of the case are that on 25.03.2022, pursuant to a secret information received informing that co-accused Arif can be caught with smack near Mahavir Vatika, a raiding team had been constituted, after following the prescribed procedure. On the same day, at about 10:40 PM, secret informer had identified the co-accused Arif, who was seen coming from NS Marg to Ansari road, Mahavir Vatika, and was carrying a bag on his right shoulder. Thereafter, two persons had come near Arif and had asked him whether he had brought smack for them to sell. Immediately thereafter, the raiding team had surrounded the three persons i.e. co-accused Arif, Salman, and Naeem. After giving notice under Section 50 of NDPS Act and calling the concerned ACP on the spot, the raiding team had carried out the search of accused persons. Upon conducting search, the team had found a plastic box inside the sports bag carried by co-accused Arif, in which a plastic polythene of white colour was found, containing smack (morphine) like substance. The team had then tested the substance using NDPS testing kit and it was found to be morphine. The plastic polythene containing the morphine had then been weighed, which was found to be 340 grams i.e. commercial quantity. All the three accused persons were arrested on 26.03.2022. During investigation, it was revealed that co-accused Arif had received the plastic box containing morphine from one Parvez, who runs a juice shop in Delhi, and the box had been carried from Shambhal, Uttar Pradesh to Delhi by one Arshad i.e. the present petitioner, who ferried passengers and goods from Shambhal to Delhi in his car. Thereafter, Call Detail Records of co-accused Arif were obtained, and it was found that on 24.03.2022, Arif had talked to the petitioner Arshad. Thereafter, petitioner Arshad had also been arrested, who had disclosed that he was involved in carrying parcels of morphine from Sambhal to Delhi, in his car, on a commission basis.

3. Learned counsel for the petitioner argues that the petitioner has been in judicial custody since 13.04.2022, but he has been falsely implicated in the present case, and no recovery has been affected from him. It is argued that the charge-sheet in this case was filed without FSL Report, and therefore, the petitioner is entitled to default bail. It is also stated that petitioner is entitled to bail on the ground of parity since the main accused Arif, from whom the recovery of contraband was affected, has been granted bail by the Hon'ble Supreme Court vide order dated 28.07.2023. It is also stated that the Hon'ble Apex Court in Mohd Arbaz & Ors. v. State of NCT of Delhi SLP (Criminal) No. 6876-6877/2022, has granted bail to the petitioners therein whose charge-sheets were filed without the FSL result. Thus, it is prayed that present petitioner be released on default bail.

4. Learned APP for the State, on the other hand, opposes the present petition and states that petitioner was is involved in the larger conspiracy and he was the one who had carried the morphine, recovered in the present case, from State of Uttar Pradesh to Delhi in his car. It is stated that FSL report has already been filed before the learned Trial Court by way of supplementary chargesheet dated 31.08.2023. It is submitted that in the case of Mohd Arbaz (supra), the Hon'ble Apex Court had merely opted to examine the legal issue in detail and for the time being, interim r