Filing a challan without the FSL report in a case under the NDPS Act does not constitute a complete challan, entitling the accused to default bail under Section 167(2) Cr.P.C.

ORDER

Anupinder Singh Grewal, J. (Oral). - The petitioner is seeking default bail in FIR No.602 dated 22.12.2020, under Section 20(b) of the NDPS Act, registered at Police Station City, Fatehabad.

2. Learned counsel for the petitioner contends that the challan had been filed in the instant case on 11.02.2021 without the FSL report, and therefore, he would be entitled to default bail in terms of Section 167(2) Cr.P.C. He has placed reliance on the judgments of the Division bench of this court in the case of Ajit Singh @ Jeeta and another Vs. State of Punjab, CRR No.4659 of 2015 and State of Haryana Vs. Dildar Ram @ Dari, CRM-M-25600-2021, decided on 15.07.2021.

3. Learned State counsel upon instructions states that FSL report has not been filed till date. He, however, contends that challan filed without even FSL report would be a complete challan. In support of his submission, he has cited the judgments of the Supreme Court in the cases of Narendra Kumar Amin Vs. CBI, 2015 (1) RCR (Criminal) 566 and Abdul Azeez P.V. Vs. NIA, 2014 (3) ACR 3335, Full Bench of this court in State of Haryana Vs. Mehal Singh and others, 1978, PLR 480, and the judgments passed by the coordinate benches of this court in Rahul Vs. State of Punjab, CRR No.1016-2020, decided on 21.12.2020, Azuka Vs. State of UT, Chandigarh, CRR-765-2020, decided on 13.03.2020, Shankar Vs. State of Haryana, CRM-M-44412-2019, decided on 20.12.2019 and Akash Kumar @ Sunny Vs. State of Haryana, CRR No.1731-2019 decided on 16.10.2019.

4. Heard.

5. The FIR was registered against the petitioner on 22.12.2020 on the allegations that lkg 600 grams of 'ganja' was recovered from the petitioner. The challan is stated to have been filed on 11.02.2021. The FSL had not been filed along with the challan. The petitioner had sought bail from the Sessions court in terms of Section 167(2) Cr.P.C. but his application was dismissed on 11.10.2021. This court in the case of State of Haryana Vs. Dildar Ram @ Dari (supra) had held that filing of the challan without FSL report would not be regarded as a complete challan and, therefore, the accused would be entitled to default bail in terms of Section 167(2) Cr.P.C.

6. The specific question with regard to the significance of filing a challan under Section 173(2) Cr.P.C. without the FSL report in a case under the NDPS Act had been referred to a Division Bench of this court. The Division Bench of this court in the case of Ajit Singh @ Jeeta and another Vs. State of Punjab (supra) held that the report of the FSL with regard to the nature of the recovered substance would go to the root of the matter and, therefore, a challan filed without the FSL report with regard to the nature of the substance would be an incomplete challan and would not satisfy the requirement envisaged under Section 167(2) Cr.P.C. The accused, in such circumstances, would be entitled to be released on default bail. The relevant extract of the judgment is reproduced hereunder:-

"We emphasize on the stringent aspect of the N.D.P.S. Act which would compellingly persuade us to take the aforesaid view. Without determining the nature and content of the contraband, it would be draconian to propel an accused into the throes of a trial. The liberty of an individual would constantly be imperiled at the hands of dubious officials of the police who may venture to falsely implicate a person.

It is for this reason that we would unhesitatingly conclude that the Chemical Examiner's report is an essential ; integral and inherent part of the investigation under the N.D.P.S. Act as it would lay the foundation of an accused's culpability without which a Magistrate would not be enabled to form an opinion and take cognizance of the accused's involvement in the commission of offence under the Act."

7. The judgments of the Supreme court and Full bench of this court which are cited by the learned counsel for the State are distinguishable on facts from the instant case. The judgment of the Supreme court in the case