The main legal point established in the judgment is the significance of the FSL report in completing the investigation in NDPS Act cases and the accused's right to default bail under Section 167(2) Cr.P.C. in case of an incomplete challan.

JUDGMENT :

MANJARI NEHRU KAUL, J.

1. The instant petition has been filed under Section 439 Cr.P.C., read with Section 167(2) Cr.P.C., for grant of regular bail to the petitioner pending trial in case FIR No.373, dated 10.08.2020 registered at Police Station Nuh [wrongly mentioned as Sadar Nuh in the impugned order (P-2)] District Nuh, under Section 20-C of the NDPS Act [wrongly mentioned as Section 61 in FIR(P-1)].

2. Brief facts of the case in hand as set up by the prosecution may be noticed thus. In pursuance to receipt of secret information, that the petitioner and co-accused were indulging in sale of narcotic drugs and had stocked Ganja in truck bearing No. HR-73A-8465, a raid was conducted on 10.08.2020 by the Police party at the disclosed place. However, co-accused fled from the spot and only the petitioner was apprehended by the police party. After complying with the mandatory provisions of the NDPS Act, the search of the truck was carried out which led to the recovery of 04 bags containing 160 kg of Ganja patti and the arrest of the petitioner effected.

3. Thereafter, investigation was set into motion leading to the presentation of the challan before the trial Court on 30th October, 2020. Learned counsel submits that no doubt the challan under Section 173 Cr.P.C., was indeed presented within the prescribed statutory period of 180 days however since the FSL report was not part of the challan, it would be deemed to be an incomplete challan thus entitling him to the grant of default bail under the provisions of Section 167(2) Cr.P.C., read with Section 36A(4) of the NDPS Act.

4. Learned counsel in support of his submissions has placed reliance upon the decision rendered by a Division Bench of this Court in Ajit Singh @ Jeeta & Anr. Vs. State of Punjab in CRR-4659 of 2015 wherein the following question was sent up for consideration :-

“Whether the presentation of report under Section 173(2) Cr.P.C., by the police without the report of the Chemical examiner/Forensic Science Laboratory amounts to incomplete challan and in the absence of any extension of time under Section 36-A(4) of the NDPS Act, the accused is entitled to bail under Section 167(2) Cr.P.C.?”

5. The Division Bench while answering the reference in the affirmative held that in case challan was presented without the chemical examiner's report, it would be deemed to be an incomplete one thus entitling the accused to the grant of default bail, unless of course if an application had been moved by the investigating agency/Public Prosecutor before the expiry of the statutory prescribed period for extension of time.

6. In addition, the learned counsel submitted that as per the challan presented, the petitioner was allegedly found to be in possession of 160 kgs Ganja patti. The learned counsel invited the attention of this Court to Section 2(iii) of the NDPS Act wherein it was explicitly provided that cannabis (hemp) would mean only ganja, that is, the flowering or fruiting tops of the cannabis plant, and not the seeds and leaves when not accompanied by the tops. Hence, it was urged that the alleged recovered substance i.e., leaves of Ganja did not attract the mischief of any offence under the NDPS Act.

7. Per contra, the learned State counsel while opposing the submissions and prayer of the learned counsel argued that since the challan stood presented within the prescribed statutory period of 180 days the petitioners indefeasible right to default bail stood extinguished. She further apprised the Court that the FSL report had since been received and in all likelihood would be filed before the Special Court concerned in the near future. Hence, it was urged that since it was a case of commercial quantity and in the wake of the above development, right of the petitioner to be released on bail under the default clause stood lost.

8. Heard and perused all the material on record. Before proceeding further it would be worthwhile to reproduce Section 167(2) Cr.P.C., and notice the obje