The court considered conflicting judgments, the subjudice matter before the Division Bench, and the completeness of the charge sheet in NDPS cases without the FSL report in extending the concession of bail in favor of the petitioner.

Judgment

Mr. Harkesh Manuja, J. :-

CRM-51064-2023

Prayer in the present application moved on behalf of the applicant-petitioner, is for condonation of delay of 128 days in filing the present revision petition.

Notice of the application stood issued vide order dated 11.12.2023 passed by this Court; however, no reply has been filed.

For the reasons stated in the application, which make out sufficient cause, the same is allowed and the delay of 128 days in filing the revision petition is condoned.

MAIN CASE

The petitioner, by way of present revision petition, seeks setting aside the order dated 18.04.2023 passed by learned Additional District & Sessions Judge-II, Sirsa, vide which an application filed by the petitioner under provisions of Section 167(2) Cr.P.C. for grant of default / regular bail stands declined.

2. Brief facts of the case are that an FIR No. 454 dated 16.10.2022, under Section 15/61/85 of the NDPS Act at Police Station Sadar, Dabwali, was lodged against the petitioner wherein the allegations broadly were to the effect that on 16.10.2022, the petitioner alongwith co-accused Sukhpal Singh @ Sukha was found in conscious possession of 146 kgs. Doda Post (poppy husk) without any permit or license, which falls under the commercial quantity.

3. The petitioner was arrested on 16.10.2022 and the statutory period of 180 days in filing the challan was to complete on 14.04.2023. However, the prosecution filed an application for extension of time to file challan alongwith the report of Forensic Science Labortory on 11.04.2023, which was allowed vide order dated 17.04.2023 (Annexure P3) passed by the learned Additional Sessions Judge, Sirsa and the prosecution was granted the extension period of 30 days for filing the FSL report.

4. In the meanwhile, the petitioner moved an application for grant of default bail before the Court below under the provisions of Section 167(2) Cr.P.C. on 15.04.2023, i.e. after the expiry of statutory period of 180 days in filing the challan, but the same was dismissed on 18.04.2023 by the learned Additional District and Sessions Judge, Sirsa, with the observations that since the application for extension of time moved by the prosecution stands allowed vide order dated 17.04.2023 while granting 30 days time to file FSL report, the application for grant of default bail was not maintainable, hence the present revision petition, assailing the same on the ground that the FSL report was filed before the Court on 15.09.2023, i.e. much after the expiry of the extension granted.

5. Learned counsel for the petitioner submits 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 16.09.2020 passed in Julfkar Versus State of Haryana, [CRR-1125-2020] to consider as to whether a challan filed without report of FSL would be an incomplete challan.

5.1. Learned counsel for the petitioner, while referring to a judgment of this Court rendered in State of Haryana Versus Dildar Ram @ Dari [CRM-M25600-2021] has submitted that a Co-ordinate Bench of this Court while referring extensively to the case law on the subject has distinguished the judgment of the Supreme Court in case “Narendra Kumar Amin Versus CBI”, reported as 2015(1) RCR (Criminal) 566, and also the Full Bench of this Court in case “State of Haryana Versus Mehal Singh and others” reported as 1978 PLR 480, 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.

6. On the other hand, learned State Counsel vehemently opposes the prayer made in the petition while submitting that since the mandate of Cr.P.C. is filing of challan within the stipulated period and since the challan had been file