IMPORTANT POINT
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.

JUDGMENT

1. The petitioners, Teeka Ram (petitioner in CRL.REV.P. 739/2023) and Satish (petitioner in CRL.REV.P. 727/2023) have filed the present petitions under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (`CrPC') challenging the orders dated 07.06.2022 and 23.03.2023 passed by the learned Additional Sessions Judge, Special Judge, NDPS, Patiala House Courts, New Delhi in SC No. 468/2022 captioned State v. Firoz Alam & Ors..

2. The learned ASJ by the orders dated 07.06.2022 and 23.03.2023 had dismissed the application for default bail of the petitioners filed under Section 167(2) of the CrPC read with Section 36A of the Narcotics Drugs and Substances Act, 1985 (hereafter `NDPS Act').

3. Briefly stated, the facts relevant for adjudication of the present petitions are as under:

3.1. The petitioners are in judicial custody in case arising out of FIR No. 67/2022 dated 01.04.2022, registered at Police Station Special Cell for offences punishable under Sections 21/29 of the NDPS Act.

3.2. It is alleged that the petitioners have indulged in transportation of contraband alleged to be "smack". As per the complaint filed by the State, it is alleged that the accused/petitioner Teeka Ram was the main link between the supplier of the contraband and the receivers. It is further alleged that the recovery made from other co-accused persons in the present case of 2.5kgs smack from Firoz Alam and 2.5kg smack from Rana Singh, was supplied by the accused Teeka Ram.

3.3. It is alleged that there is a recovery of 550 grams of smack from the accused/petitioner Satish Kumar in the present case.

3.4. The petitioners were arrested on 04.04.2022 and 03.04.2022, respectively.

3.5. After the completion of the investigation, the charge sheet in the present case filed on 26.09.2022 under Sections 21/29 of the NDPS Act.

3.6. The petitioners had filed an application under Section 167(2) of the CrPC read with Section 36A (4) of the NDPS Act and under Section 439 of the CrPC before the learned Trial Court seeking grant of bail in default on the ground that even though the chargesheet was filed on 26.09.2022, the same was incomplete since it did not accompany the FSL Report regarding the nature of the contraband. The learned Trial dismissed the said applications by orders dated 23.03.2923 and 07.06.2023 and held that mere non filing of FSL report do not make the charge sheet incomplete.

4. The learned counsel for the petitioners submitted that the first arrest in the present cases was made on 01.04.2022. The charge sheet in the present was required to be filed within 180 days thereafter, in terms of Proviso to Section 36A(4) of the NDPS Act. The chargesheet, though was filed within the stipulated time period, but the same was incomplete and therefore, the petitioners are entitled to default bail.

5. The learned counsel submitted that at the time the charge sheet was filed, the FSL report was awaited and therefore, it cannot be said that the charge sheet filed is indicative of the completion of investigation in terms of Section 167(2) of the CrPC.

6. The learned counsel submitted that no extension of time was sought or obtained by the Respondent PS Special Cell under Section 36A (4) of the NDPS Act.

7. The learned counsel submitted that the purpose of a complaint/charge sheet is to enable the learned Magistrate to form an opinion on the culpability of the accused. However, in the absence of any report of physical testing of the substance recovered, to ascertain whether the substance recovered from the petitioners or illegally trafficked by them is prohibited under the NDPS Act, no congnizance can be taken.

8. The learned counsel submitted that the present case is not fit for taking cognizance by the learned Trial Court or framing of charges since the FSL report is not filed yet and that renders the charge sheet incomplete.

9. The learned counsel submitted that the petitioners are in judicial custody for more than one year, and there are 26 witnesses