Judgment

Mrs. Manjari Nehru Kaul, J.

The petitioner is impugning order dated 04.05.2023 passed by learned Additional Sessions Judge, Sonipat, vide which his application under Section 167(2) Cr.P.C. for grant of default bail in case bearing FIR No.80 dated 01.11.2022 under Section 22 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, ‘the NDPS Act’) registered at Police Station GRP Sonipat, District GRP Ambala Cantt. was dismissed.

2. Learned counsel for the petitioner while, impugning order dated 04.05.2023, has vehemently contended that the petitioner was arrested on 01.11.2022 in the FIR in question. Thereafter, challan was presented by the investigating agency, but without the report of the Forensic Science Laboratory (hereinafter referred to as, ‘FSL’) on 13.04.2023. The case was then adjourned by the Court below for 01.05.2023 to await the receipt of the FSL report. Since the petitioner was arrested on 01.11.2022; the statutory period for completing investigation under the NDPS Act, i.e. 180 days was thus, to expire on 01.05.2023. However, as the FSL report had not been filed by the investigating agency even by 01.05.2023, the investigation could not be said to be complete. Therefore, in the circumstances, an indefeasible right stood accrued to the petitioner under Section 167(2) Cr.P.C. for being granted default bail. Thus, immediately thereafter, the petitioner moved an application before the trial Court under Section 167(2) Cr.P.C. on 02.05.2023. In support, learned counsel has placed reliance upon Ajit Singh @ Jeeta & another vs. State of Punjab (CRR No.4659 of 2015 dated 30.11.2018) to urge that challan without the FSL report would be an incomplete challan, entitling the accused to default bail under Section 167(2) of the NDPS Act.

3. It has been further vehemently argued that as per the mandate of Section 36 -A(4) of NDPS Act, it was incumbent upon the Public Prosecutor to submit a report before the Court for seeking extension of time to file the FSL report and it would have been only then that the extension could have been granted by the Court concerned. However, the learned Court arbitrarily extended the period of investigation on the ground that the investigating agency had already presented the final report with a clarification that the FSL report had not been received. Learned counsel therefore, has asserted that the rationale behind the impugned order, on the face of it, is erroneous, as it is not the investigating agency but only the Public Prosecutor, who as per the provisions of Section 36 -A(4) of the NDPS Act could have sought extension of time after presenting the report. Hence, the impugned order was not sustainable in the eyes of law. In support, reliance has also been placed on Uday Mohanlal Acharya vs. State of Maharashtra , (2001) 5 SCC 453 and Hitendra Vishnu Thakur vs. State of Maharashtra , (1994) 4 SCC 602 .

4. Learned State counsel, while opposing the prayer and submissions made by the counsel opposite, submits that the period of investigation had not elapsed as the Court below had already extended it for a year vide the impugned order. However, learned State counsel was not able to dispute the fact that no report as mandated under Section 36 -A of the NDPS Act, seeking extension of time, had ever been made by the Public Prosecutor to the Court concerned.

5. I have heard learned counsel for the parties and perused the relevant material on record.

6. Before proceeding further, it would be apposite to reiterate that if on the expiry of the prescribed period of 180 days, investigation is still incomplete, an indefeasible right would accrue in favour of the accused under Section 167 (2) of Cr.P.C.

7. Still further, even if the challan has been presented by the investigating agency within the prescribed period of 180 days, in cases under the NDPS Act, the FSL report must be a part of the challan as the same would be one of the factors to determine the nature of