The presentation of a report under Section 173(2) of the Code without the report of the chemical examiner does not entitle the accused to bail under Section 167(2) of the Code, but a complete report under Section 173(2) must be accompanied by all the documents contemplated under Section 173(5) for the Magistrate to take cognizance of an offence.

JASPAL SINGH, J.

1. By virtue of instant revision petition, the petitioner has sought quashing of impugned order dated 06.08.2015 whereby an application moved by the petitioner under Section 167 (2) of the Code of Criminal Procedure (for brevity, “Code”) read with Section 36(A)(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “Act”) was dismissed.

2. The only question, which requires determination in instant case is whether presentation of report under Section 173 (2) of the Code minus the report of chemical examiner is a complete report or incomplete report and if, incomplete report, whether the petitioner is entitled to the concession provided under Section 167 (2) of the Code.

3. The case of the prosecution, in brief, is that the petitioner has been arrested on 01.02.2015 under Section 21 of the Act and after investigation, report under Section 173(2) of the Code was presented in the Court of ld. Jurisdictional Magistrate but without the report of the chemical examiner.

4. Undoubtedly, in the instant case, the investigating agency presented the report under Section 173 (2) of the Code but without the report of the chemical examiner. An application was moved by the petitioner on the ground that due to the submission of incomplete challan/report, indefeasible right of bail has accrued to him. Consequently, he is entitled to bail under Section 167(2) of the Code but while holding that since the report has been presented in the Court, an application moved by him under Section 167 (2) of the Code, was dismissed vide order dated 06.08.2015.

5. Aggrieved against the said order, he approached this Court by way of instant revision petition.

6. By now, through a catena of cases, it is fully established that failure on the part of investigating agency to present a complete police report within the prescribed period confers an indefeasible right upon the accused to be released on bail because in the absence of the report of chemical examiner, the Court is incompetent to take cognizance of an offence. Even otherwise, filing of charge-sheet under Section 173(2) of the Code is not complete, unless, it is accompanied by all the documents contemplated under Section 173(5) of the Code and is taken on record for the examination for taking cognizance. In “Sub-Divisional Magistrate, Delhi v. Master Ram Kali”, AIR 1968 Supreme Court 1, the Hon'ble Apex Court has held that when Section 190(1)(b) of the Code uses the words “may take cognizance” it means that the Court must take cognizance and it has no discretion in the matter. Moreover, no reasons are required to be given for taking cognizance under Section 193 of the Code. But in order to enable the Magistrate to take cognizance on a police report under Section 173 (2) of the Code, the same has to be a complete report thereunder accompanied by the documents under sub-section (5) of Section 173 of the Code so that the Magistrate may apply his judicial mind for the purpose after looking into the police report and the materials annexed therewith. In other words, it can be said that the term “taking cognizance” means a judicial action permitted by the Code taken with a view to take eventual prosecution preliminary to the commencement of the enquiry or trial. In case, “H.S. Bains v. State, AIR 1980 Supreme Court 1883”, it was observed that a Magistrate on receipt of police report under Section 173 of the Code may as well decide that there is no sufficient ground for proceeding further, and drop action, or he may take cognizance of the offence under Section 190(1) (b) of the Code on the basis of the police report. In view of another decision of Hon'ble Supreme Court in “Satya Narain Musadi v. State of Bihar”, 1980 Cri LJ 227, the police report under Section 173(2) of the Code unaccompanied by the documents under Section 173(5) of the Code cannot be said to be police report in the eyes of law being an incomplete one. A Magistrate would be incompetent to take cognizance of