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IN THE HIGH COURT OF DELHI AT NEW DELHI
Jyoti Singh, J.
Rohit - Appellant
Versus
State (NCT) of Delhi) - Respondent
Bail Appln. 3753 of 2023
Decided On : 30-01-2024
default bail - NDPS Act - Section 167(2) Cr.P.C., Section 439 Cr.P.C. - Sections 21, 25 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)
Fact of the Case:
The Applicant filed for default bail under Section 167(2) Cr.P.C. read with Section 439 Cr.P.C. in a case under Sections 21 and 25 of the NDPS Act. The prosecution alleged recovery of heroin from the Applicant and argued that the Charge Sheet, filed within the stipulated timeframe, was complete despite the absence of the FSL report.
Finding of the Court:
The Court dismissed the application for default bail, stating that the Charge Sheet, filed within the statutory period, albeit without the FSL report, did not entitle the Applicant to default bail. The FSL report was subsequently received and filed along with a supplementary Charge Sheet before the Trial Court.
Issues: The main issue was whether the Charge Sheet, filed without the FSL report within the stipulated period, entitled the Applicant to default bail.
Ratio Decidendi: The Court held that non-filing of the FSL report along with the Charge Sheet did not fall within the ambit of Section 173(2) Cr.P.C. to consider it as an incomplete Charge Sheet, and accordingly, no right of default bail accrued in favor of the accused.
Final Decision: The petition for default bail was dismissed as being devoid of merit, and the Court clarified that the dismissal did not express any opinion on the merits of the case.
JUDGMENT
Jyoti Singh, J. (Oral) - This application has been filed by the Applicant Rohit S/o Sh. Shailender under Section 167(2) Cr.P.C. read with Section 439 Cr.P.C. for grant of default bail in FIR No.145/2022 dated 20.07.2022 under Sections 21 and 25 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) registered at PS: Crime Branch (N-W).
2. Case of the prosecution is that on secret information being received, a trap was laid by the team of the Crime Branch near Nala Road, A-Block, Sultanpuri Park and after statutory compliances of the provisions of the NDPS Act, one person was apprehended, who was identified as Rohit, the Applicant herein. Raiding team conducted personal search of the Applicant and one transparent polythene pouch containing pink colour powder was recovered, which upon checking through Field Testing Kit turned out to be heroin, with weight of 410 grams. The recovered contraband was taken into police possession through seizure memo and after due compliances, the present FIR was registered. Applicant was apprehended on the same day i.e. 20.07.2022. It is stated in the status report that all mandatory provisions of NDPS Act i.e. Sections 42, 50, 52, 55 and 57 with respect to recovery and arrest were complied with.
3. Learned counsel for the Applicant argues that the Applicant is innocent and has been falsely implicated since the contraband was planted by the police officials of the Crime Branch. Charge Sheet was filed without the FSL report and therefore, even if it was filed within the stipulated timeframe of 180 days, as provided under Section 167(2) Cr.P.C. read with Section 36A of NDPS Act, it would be an incomplete Charge Sheet, entitling the Applicant to default bail. Reliance in this context is placed on the orders of the Supreme Court in Babu v. The State (GNCT of Delhi), Special Leave to Appeal (Crl.) No. 6518/2020, decided on 05.08.2021; Mohd. Arbaz & Ors. v. State of NCT of Delhi, Special Leave to Appeal (Crl.) No. 8164-8166 of 2021, decided on 13.12.2021 and Suleman v. The State (GNCT of Delhi), Special Leave to Appeal (Crl.) No. 1929/2023, decided on 17.04.2023, wherein the Supreme Court has granted bails to the accused persons in cases where FSL report was not filed along with the Charge Sheet within a period of 180 days albeit the question of law, whether a Charge Sheet can be said to be incomplete without FSL report, is still pending consideration before the Supreme Court.
4. Learned APP for the State, per contra, submits that 410 grams of heroin was recovered from the Applicant, which is a commercial quantity. During interrogation, Applicant stated that he procured heroin/smack from a lady named Kajal, resident of Mangolpuri, however, analysis of the CDRs of the mobile phone of the Applicant showed no linkage between the two. It is argued that the Supreme Court in Babu (supra), Mohd. Arbaz (supra) and Suleman (supra), has only granted interim reliefs to the Petitioners therein but the larger question whether the charge sheet filed without FSL report is complete or not for the purpose of default bail is yet to be decided.
5. Heard learned counsel for the Applicant and learned APP for the State.
6. The primordial ground taken by the Applicant in the present application for seeking default bail is that complete Charge Sheet has not been filed within the stipulated period of 180 days, as the Charge Sheet was not accompanied by a FSL report. On this ground, the order of the learned Special Judge, NDPS, Rohini Courts, Delhi is assailed and it is prayed that the Applicant be granted default bail.
7. Before examining the rival contentions, it would be useful to allude to provisions of Section 36A of NDPS Act and Section 167 of Cr.P.C. When read together and conjointly, it is palpably clear that in respect of persons accused of an offence punishable under Sections 19/24/27A or offences involving commercial quantity, references in sub-section (2) of Section 167 Cr.P.C. thereof to `ninety days' w
The absence of an FSL report does not render a chargesheet incomplete; the right to default bail ceases once a chargesheet is filed, regardless of pending investigations.
A Charge-Sheet filed without a Chemical Analysis Report can be deemed valid, shifting the bail determination to merits rather than procedural deficiencies once filed within statutory limits.
Non-filing of the FSL report along with the charge sheet does not render the charge sheet incomplete, and therefore, no right of default bail is accrued in favor of the accused.
The absence of an FSL report does not invalidate a charge sheet under NDPS Act, affirming the right to default bail remains linked to timely completion of investigations.
A police report under Section 173(2) is not incomplete solely for lacking an FSL report if filed within the stipulated time, thus default bail cannot be claimed.
The non-filing of FSL report with the challan does not vitiate the challan or entitle the applicant to default bail under section 167(2) of the Criminal Procedure Code.
Point of Law : Section 173(8) of the Cr.P.C. directs further investigation in the matter.
The essential nature of the FSL report in establishing the nature of contraband and the inability to take cognizance of an offence under the NDPS Act without it.
The necessity of the FSL report in the challan under Section 173 Cr.P.C. for establishing a case under the NDPS Act and granting default bail.
Default bail – Petitioner does not get a right to demand for enlargement on the ground of default bail under Section 167(2) of Cr.P.C. merely because charge-sheet/final report filed by Police after i....
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