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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
N.S. Shekhawat, J.
Rachna and another - Petitioners - Appellant
Versus
State of Haryana - Respondent - Respondent
CRR-2066 of 2023
Decided On : 20-09-2023
Default Bail - NDPS Act - Section 167(2) Cr.P.C. - [Section 167(2) Cr.P.C.] - The court discussed the interpretation of Section 167(2) Cr.P.C. and its application in cases involving the NDPS Act. It highlighted conflicting judgments and the distinction between cases under the NDPS Act and other criminal cases. The court ultimately held that the challan filed without the FSL report would entitle the accused to be released on default bail under Section 167(2) Cr.P.C.
Fact of the Case:
The petitioners challenged the dismissal of their application under Section 167(2) Cr.P.C. for default bail after the Investigating Agency presented an incomplete final report under Section 173 Cr.P.C. without the report of the FSL.
Finding of the Court:
The court found that the challan filed without the FSL report would entitle the accused to be released on default bail under Section 167(2) Cr.P.C., based on the interpretation of the law and conflicting judgments.
Issues: The issues involved the entitlement of the petitioners to default bail under Section 167(2) Cr.P.C. due to the incomplete final report presented by the Investigating Agency.
Ratio Decidendi: The court held that the challan filed without the FSL report in cases under the NDPS Act would entitle the accused to be released on default bail under Section 167(2) Cr.P.C., based on the conflicting judgments and the interpretation of the law.
Final Decision: The petition was allowed, and the impugned order was set aside. The petitioners were ordered to be released on bail on their furnishing bail bonds/surety bonds to the satisfaction of the learned trial Court/Duty Magistrate/CJM concerned.
N.S. SHEKHAWAT, J.
1. By way of the present petition, the petitioners have challenged the impugned order dated 18.07.2023 passed by the Court of Additional Sessions Judge, Panipat, whereby, the application under Section 167(2) Cr.P.C. filed by the petitioners was ordered to be dismissed.
2. As per the case of the prosecution, on 17.01.2023, a police team headed by ASI Sandeep was present in connection with patrolling duty and detection of crimes, where, a secret information was received against the petitioners and others. Accordingly, a raid was conducted at the house of the petitioners and on search of four plastic bags, 154 Kgs of Ganja Patti were recovered from the petitioners and their co-accused Sewadan and they were possessing the said contraband without any permit or licence. Accordingly, after following the due process of law, the FIR was ordered to be registered against the petitioners and Sewadan.
3. Learned counsel for the petitioners contends that the FIR in the present case was ordered to be registered on 17.01.2023 and even the petitioners were arrested on 17.01.2023 and they were ordered to be produced before the Court of on 18.01.2023. Thereafter, the investigation was conducted and the police had presented final report under Section 173 Cr.P.C. without the report of the FSL on 14.07.2023, before the Court. On 12.07.2023, an application was filed for extension of time for submitting the report before the trial Court. However, vide order dated 12.07.2023 (Annexure P-2), the said application was ordered to be dismissed. On 17.07.2023, the petitioners filed the present application under Section 167(2) Cr.P.C. as the Investigating Agency had presented the incomplete final report under Section 173 Cr.P.C. as the report of FSL was not annexed with the said report. Learned counsel further contends that the petitioners were arrested in the present case on 17.01.2023 and they were produced before the Court on 18.01.2023 and the application for grant of bail under Section 167(2) Cr.P.C. was filed on 17.07.2023, after completion of more than 180 days. However, vide impugned order, the said prayer has been wrongly declined by the Court of Additional Sessions Judge, Panipat. Learned counsel for the petitioners has placed relied on the law laid down by this Court in Criminal Revision 4659 of 2015 decided on 30.11.2018 titled as “Ajit Singh @ Jeeta and another Vs. State of Punjab” and connected cases, Criminal Revision 1125 of 2020 decided on 16.09.2020 titled as “Julfakr Vs. State of Haryana” CRR 755 of 2021 decided on 29.11.2021 titled as Krishan Singh Vs. State of Haryana”, CRM M-48705 of 2021 decided on 11.02.2022 titled as “Joginder Singh Vs State of Haryana” and connected case, CRR 708-2021 decided on 28.10.2022 titled as “Satpal Singh @ Satpala and another Vs. State of Haryana”, CRR 1369 of 2023 decided on 29.05.2023 titled as “Vikram Vs State of Haryana” and by the Hon'ble Supreme Court in Special Leave to Appeal decided on 09.11.2022 titled as “Mohd. Arbaz and others Vs. State of NCT of Delhi”.
4. On the other hand, learned State counsel submitted that even though, the FSL report had not been filed alongwith the challan, still, the challan without FSL report would not be regarded as incomplete challan. Learned State counsel submits that huge recovery had taken place from the present petitioners and the petitioners are not entitled for the concession of bail by this Court. Learned State counsel has also relied upon the law laid down by the Hon'ble Supreme Court in the matter Narendra Kumar Amin Vs. CBI, 2015 (1) RCR (Criminal) 566 and Abdul Azeez P.V. Vs. NIA, 2014(3) ACR 335.
5. I have heard learned counsel for the parties and perused the record.
6. 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 judgments of the Supreme court in the cases of Narendra Kumar Amin Vs. CBI (supra) and Abdul Azeez P.V
A challan filed without an FSL report in a case under the NDPS Act is an incomplete challan and does not satisfy the requirement of Section 167(2) Cr.P.C., entitling the accused to default bail.
The necessity of the FSL report in the challan under Section 173 Cr.P.C. for establishing a case under the NDPS Act and granting default bail.
The essential nature of the FSL report in establishing the nature of contraband and the inability to take cognizance of an offence under the NDPS Act without it.
Non-filing of the FSL report along with the charge sheet does not render the charge sheet incomplete, and therefore, no right of default bail is accrued in favor of the accused.
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.
The non-filing of FSL report with the challan does not vitiate the challan or entitle the applicant to default bail under section 167(2) of the Criminal Procedure Code.
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.
The absence of an FSL report does not invalidate a charge sheet under NDPS Act, affirming the right to default bail remains linked to timely completion of investigations.
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