A challan presented without the FSL report can be deemed incomplete, entitling the accused to default bail unless an application for extension of time is filed.

JUDGMENT

Vikas Bahl, J. (Oral). - Challenge in the present Criminal Revision is to the order dated 06.06.2022 to the extent that the Special Judge Under NDPS Act, Fatehabad, in an application for bail under Section 36-A of the NDPS Act and Section 167(2) of Cr.P.C. had ordered the release of the petitioner on default bail 'till receipt of FSL report' instead of allowing the said application.

2. Learned counsel for the petitioner has submitted that in the present case, the petitioner was arrested on 05.02.2022 and the challan has been presented on 06.04.2022 and the said challan did not contain the FSL report. It is further submitted that since the alleged recovery effected in the present case is 30 grams 45 milligrams of heroin thus, challan was to be presented within a period of 60 days. It is contended that the challan was presented on 06.04.2022 without annexing the FSL report. It is further contended that application under Section 167(2) of Cr.P.C. read with Section 36-A of the NDPS Act was filed on 01.06.2022 and no application for extension of time to complete investigation was filed by the prosecution in terms of Section 36(4) of the NDPS Act. It is argued that the FSL report has not been submitted even till date.

3. Learned counsel for the petitioner has placed reliance upon the Division Bench judgment of this Court in CRR No. 4659 of 2015 titled as 'Ajit singh @ Jeeta and anoher Vs. State of Punjab' to contend that in such a situation the petitioner deserves the concession of default bail. It is also contended that in view of the conflict of opinion on the said point, the matter was referred to a Division Bench and has further relied upon a judgment dated 18.11.2020 passed in CRR No. 1135 of 2020 titled as 'Suresh Vs. State of Haryana' in which a Coordinate Bench of this Court, after considering the entire aspect, was pleased to release the petitioner/accused therein on conditional bail with the clarification that in case the legal point is held against the petitioner/accused therein, the State would be at liberty to seek cancellation/ modification of the order, if warranted at that stage. It is contended that in the impugned order, the abovesaid important contentions have not been considered and has thus, prayed that the impugned order dated 24.05.2021 be set aside.

4. Learned State counsel, on the other hand, has opposed the present petition and has submitted that there is a plethora of judgments, which support the proposition that once the challan has been presented even without the FSL report, then also, default bail cannot be granted.

5. This Court has heard learned counsel for the parties and has perused the paperbook.

6. The relevant portion of the judgment in Suresh's case (supra) passed by a Coordinate Bench is reproduced hereinbelow:

'2. Vide the Impugned Order, the Ld. Additional Sessions Judge, Fatehabad had dismissed the Petitioner's Application for Bail under Section 36-A of the NDPS Act read with Section 167(2) of the Cr.P.C.

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4. It may be mentioned that the aforesaid decision of the Division Bench in Ajit Singh alias Jeeta's case (supra) was passed in view of a question sent up for consideration in those seven cases, which was as follows:-

'Whether the presentation of report under Section 173(2) Cr.P.C. by the police without the report of 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 N.D.P.S. Act, the accused is entitled to bail under Section 167(2) Cr.P.C.?'

5. The Division Bench answered the above reference by holding that a Challan presented without Chemical Examiner's Report can only be termed as an incomplete one, which would result in Default Bail to the accused unless an Application was moved by the Investigating Agency with a prayer for extension of time. The relevant extracts from the decision of the Division Bench are set down as below :-

'For this reason as well, it is essential that the re