Point of Law: Narcotic substances - Ganja - Bail dismissed - Procedure when investigation cannot be completed in twenty four hours - Commercial quantity of Hashish oil and MDMA is seized from petitioner and other accused - Petitioner is not entitled default bail

ORDER :

A short point, ofcourse an interesting point, is raised by Advocate Smt.Anitha Mathai Muthirenthy, the counsel for the petitioner in this bail application. According to the counsel, the petitioner is entitled to statutory bail u/s. 167(2) of the Criminal Procedure Code (for short Cr.P.C) because no complete final report is filed before the court concerned, even after 180 days from the date of detention of the petitioner.

2. The facts are like this:

The petitioner is the 1st accused in Crime No.91 of 2021 of Central Police Station, Ernakulam. The offences alleged against the petitioner are u/s.20(b)(ii)(C), 22(C), and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act). The prosecution case is that the petitioner was residing in an apartment on the 2nd floor of Njarakkattu Residency in Kunnappally Lane in Nettipadam Road, Ernakulam. On 30.1.2021, the police got information that the selling of narcotic drugs is going on in the above apartment. The information was recorded in the C.D by the officer concerned and proceeded to the place after complying with other formalities. When the police party reached the apartment, the 1st accused opened the door. It was found that the 2nd and 3rd accused were also present in the apartment. After performing the legal formalities, the body of the petitioner and the other accused were searched. The apartment was also searched. It is the prosecution case that 44.56 gms of MDMA, 1286.51 gms of Hashish oil, and 340 gms of Ganja were seized. It is also the case of the prosecution that the 2nd accused was found in possession of 1.93 gms of Hashish oil and the 3rd accused was found in possession of 1.88 gms of Hashish oil. Hence, it is alleged that the accused committed the offence. It is the admitted case of the prosecution and the accused that the final report is filed before the jurisdictional court without the analyst report of the contraband articles seized. It is also an admitted fact that the statutory period of 180 days for completing the investigation is also over. The petitioner was arrested on 30.1.2021 and he was produced before the court concerned on 31.1. 2021. Admittedly, the final report without the analyst report was submitted before the court concerned within 180 days. It is also an admitted case that the Hashish oil and the MDMA seized from the possession of the accused are commercial quantities as per the NDPS Act. According to the petitioner, he is entitled to default bail because an incomplete charge sheet is submitted.

3. Heard the counsel for the petitioner Advocate Smt.Anitha Mathai Muthirenthy and the Additional Director General of Prosecution Sri.Gracious Kuriakose.

4. The counsel for the petitioner raised several contentions. The counsel submitted that there was no seizure from the body of the petitioner. The counsel submitted that simply because some contraband articles are seized from the apartment in which the petitioner was found, the petitioner is not responsible for the same. The counsel also submitted that there is no criminal antecedents to the petitioner. It is also the case of the petitioner that there is no conscious possession of the contraband article seized from the apartment as far as the petitioner is concerned. It is also contended by the counsel that the prosecution submitted a final report without an analyst report. According to the petitioner, in NDPS cases, without analyst report, the prosecution cannot succeed. The counsel submitted that the final report submitted by the investigating officer is without the analyst report and therefore, it is an incomplete final report. The counsel submitted that the incomplete final report is filed to defeat the right of the petitioner to get bail u/s.167(2) Cr.P.C. Therefore, the counsel submitted that the petitioner is entitled bail because there is an incomplete final report filed before the court just to get over the provision under Section 167(2) Cr.P.C. Hence, the counsel submi