The FSL report is crucial in establishing the contraband nature of recovered substances under the NDPS Act, distinguishing it from other offenses and influencing the grant of bail.

JUDGMENT

Gurvinder Singh Gill, J. (Oral) - The petitioner assails order dated 28.4.2022 passed by learned Additional Sessions Judge, Fatehabad vide which an application filed by the petitioner under provisions of Section 36-A of the NDPS Act and Section 167(2) Cr.P.C. for grant of bail has been declined.

2. A few facts necessary to notice for disposal of this peition are that FIR No. 48 dated 9.2.2022, Police Station City, Ratia, District Fatehabad, under Sections 21(b)/27-A/29/61/85 of the NDPS Act, was lodged against the petitioner wherein the allegations are broadly to the effect that on 09.2.2022, the petitioner was found in possession of 15 grams of 'Heroin'.

3. The matter was investigated by the police and a report under Section 173 Cr.P.C. was presented before the trial Court on 7.4.2022. The said report was, however, not accompanied by the report of FSL.

4. The period of 60 days, which is mandated for filing of challan in cases of recovery of non-commercial quantity, as per provisions of the NDPS Act read with Section 167 Cr.P.C. expired on 10.4.2022. Since the prosecution did not file the FSL report even by the said date, the petitioner moved an application dated 26.4.2022 under Section 167(2) Cr.P.C. for his release on bail before the Court of learned Additional Sessions Judge, Fatehabad on the ground that in the absence of report of FSL, the challan could not be said to be complete. The said application was considered by the trial Court but was dismissed vide order dated 28.4.2022, which has been assailed by way of filing the instant petition.

5. The learned counsel has submitted that since there has been some conflict in judgments of this Court as regards the issue in hand, the matter has been referred to a larger Bench vide order dated 16.9.2020 passed in 2020(4)Law Herald 188 Julfkar Vs.State ofHaryana [CRR-1125-2020] to consider as to whether a challan filed without report of FSL would be an incomplete challan.

6. The learned counsel, while referring to a judgment of this Court rendered in State of Haryana Vs. Dildar Ram @ Dari CRM-M-25600-2021 has submitted that a co-ordinate Bench of this Court while referring extensively to the case law on the subject has distinguished the judgments of the Supreme Court reported as 2015(1) RCR (Criminal) 566 - Narendra Kumar Amin Vs. CBI and also the full Bench of this Court reported as 1978 PLR 480 - State of Haryana Vs. Mehal Singh and others on the ground that the same did not pertain to NDPS Act whereas a case under NDPS Act is on an entirely different footing than a case for other offences like IPC. It has been submitted that several co-ordinate Benches have granted bail in view of the fact that the matter in hand has been referred to a Division Bench and is still pending.

7. Opposing the petition, the learned State counsel, has submitted that since the mandate of Cr.P.C. is filing of challan within the stipulated period and since the challan had been filed within 60 days in the instant instance, no case for grant of bail is made out.

8. This Court has considered the rival submissions.

9. It is no doubt correct that Hon'ble the Supreme Court and also a full Bench of this Court have held that a challan even if not accompanied by a report of the Chemical Examiner or of the expert cannot be said to be incomplete. However, it needs to be highlighted that the said cases did not pertain to an offence under the NDPS Act. A case under the NDPS Act can only survive in case the prosecution is able to establish that the article recovered is indeed a contraband and which can only be established on the basis of its chemical examination, which is normally got done through FSL established by the Government. In other words, the report of the FSL forms the foundation of the case of prosecution and in case the same is not there the entire case of prosecution falls to ground.

10. On the other hand, in other cases say any injury or hurt or murder case under IPC, even the ocular version coupled with s