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.

JUDGMENT :

AMIT MAHAJAN, J.

1. The present application is filed seeking default bail in FIR No. 487/2023 dated 09.08.2023 registered at Police Station Binda Pur for offences under Sections 8 /22/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).

2. Brief facts of the case are that a secret information was received on 09.08.2023 at Anti- Narcotics Cell Dwarka that a person namely, Tushar Choudhary, is involved in peddling of ‘Amphetamine’ drugs and that he would come to deliver the same near Solanki Chowk, Bindapur, Matiayala Road, New Delhi at around 02:00 PM – 2:30 PM.

3. Thereafter, a raiding team was formed and the applicant was apprehended at around 2:18 PM when he came on a scooty and withdrew a yellow card box from the trunk of his scooty.

4. A notice under Section 50 of the NDPS Act was served to the applicant informing him about his legal right to get his search in front of the Gazetted Officer or a Magistrate. It is alleged that the applicant refused to be searched in the presence of a Magistrate or a Gazetted Officer.

5. It is alleged that after complying with the statutory provisions, the raiding team conducted a cursory search of the box carried by the applicant, wherefrom, a white polythene containing off white colour crystal substance was recovered. The same was tested with the aid of field-testing kit and was confirmed to be ‘Amphetamine’ weighing 1.024 kg. The present FIR was thereafter registered, and the applicant was subsequently arrested.

6. The chargesheet was thereafter filed on 02.02.2024.

7. The applicant filed an application under Section 167(2) of the CrPC seeking grant of default bail before the learned Special Judge (NDPS) – 01, Dwarka Courts, Delhi on the ground that the chargesheet was incomplete since the same was filed without any FSL report. The application was dismissed by order dated 01.06.2024 on the ground of non-maintainability. It was held that the issue whether chargesheet filed without FSL report is an ‘incomplete chargesheet’, is pending consideration before the Hon’ble Supreme Court and the Court, in such a circumstance, is bound to follow the law as laid down by the Division Bench of this Court in Kishan Lal v. State : 1989 SCC OnLine Del 348

8. The learned counsel for the accused/applicant submitted that the chargesheet in the present case was filed without FSLReport, the chargesheet in such a case would be considered as ‘incomplete’ and thus, the applicant would be entitled to default bail since, the investigation was not completed within the statutory period as provided under Section 36A (4) of the NDPS Act.

9. The learned counsel submitted that the Hon'ble Apex Court in several recent decisions, including in Mohd Arbaz & Ors. v. State of NCT of Delhi : SLP (Criminal) No. 6876- 6877/2022 and Suleman v. The State (GNCT of Delhi : SLP (Criminal) No.1929/2023, has granted interim bail to the accused persons, in cases where FSL report was not filed along with the charge sheet within a period of 180 days.

10. The learned Additional Public Prosecutor (APP) for the State submitted that the present case pertains to recovery of ‘Amphetamine’ weighing 1.024 kg, which is a commercial quantity, from the possession of accused person who is allegedly involved in trade of narcotic drugs. It is argued that in the case of Mohd Arbaz & Ors. v. State of NCT of Delhi (supra), the Hon’ble Apex Court has only opted to examine the legal issue in detail and for the time being, interim relief has been granted to the accused.

11. The learned APP submitted that mere non-filing of the FSL report does not