The court established that a police report under Section 173(2) of the Cr.P.C. is complete even without the Chemical Examiner's report, unless the case is based entirely on the nature of contraband under the NDPS Act.

JUDGMENT

Vibhu Bakhru, J. The petitioners impugn a common order dated 20.08.2019, whereby their respective applications for grant of bail in default under Section 167 (2) of Code of Criminal Procedure (hereafter the `Cr.PC') were rejected.

2. The petitioners' claim that they are entitled to bail in default is premised on the assertion that the investigating agency has failed to file a police report under Section 173 (2) of the Cr.PC within the stipulated period of one-hundred and eighty days. Although, it is not disputed that a report was filed within the stipulated period, the petitioners contend that the said report was incomplete as it was not accompanied by the report of the Chemical Examiner.

3. The petitioners are being prosecuted for committing an offence under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 2012 (hereafter the `NDPS Act'). They claim it cannot be asserted that the substance allegedly recovered from them was a narcotic drug or psychotropic substance without a Chemical Examiner's report indicating the same. This being the foundation of the allegation against the petitioners, a police report not accompanied by a Chemical Examiner's report cannot be considered as a report under Section 173 (2) of the Cr.PC. The Chemical Examiner's report was furnished before the learned Special Court on the same date when the applications filed by the petitioners were taken up for consideration. Nonetheless, the petitioners claim that they are entitled to bail in default under Section 167 (2) of the Cr.PC as their respective applications seeking the same were filed prior to the Public Prosecutor placing the FSL Report before the Special Court.

4. In view of the above, the following questions fall for consideration of this Court:

(i) Whether in a case of commission of an offence punishable under the provisions of the NDPS Act, which is founded on recovery of narcotic drugs and/or psychotropic substance, a police report under Section 173 (2) of the Cr.PC can be considered as such if it is not accompanied by a Chemical Examiner's Report with regard to the substance recovered, and;

(ii) Whether an accused would be entitled to bail in default under Section 167 (2) of the Cr.PC where his application for such bail has been filed prior to the submission of the report under Section 173 (2) of the Cr.PC but is taken up for consideration simultaneously with the said report being filed.

5. The relevant facts necessary to address the aforesaid controversy are set out below:

5.1. It is alleged that on 16.12.2018 at about 09:00 pm, information was received through a special messenger at the office of Special Cell, Sector-7, Pushp Vihar, New Delhi - that one Abdul Rashid (petitioner in Crl. Rev. P. 1220/2019), who is a resident of Bhilwara, Rajasthan and deals in the business of narcotic drugs (Heroin) would arrive near Ambedkar Park, Sector 12, R.K. Puram, Ring Road on that date in a vehicle bearing Registration No. RJ 06 UA9729 between 09:00 pm and 12:00 pm. It was informed that he would be carrying heroin for its distribution in Delhi. After obtaining the necessary authorization, a raiding team was constituted. The raiding team so constituted positioned themselves near the spot (Amb