In The High Court for the States of Punjab and Haryana

At Chandigarh

CRR-1046-2022 (O&M)

Date of Decision:- 29.11.2022

Mukesh Pal @ Makhan

… Petitioner

Versus

State of Haryana

... Respondent

CORAM:

HON'BLE MR. JUSTICE GURVINDER SINGH GILL

Present:-

Mr. L.S. Sekhon, Advocate, for the petitioner.

Mr. Abhinash Jain, DAG, Haryana.

*****

GURVINDER SINGH GILL, J

. (Oral)

1.

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.

MOHAN SINGH

2022.11.29 18:01

I attest to the accuracy and

integrity of this document

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CRR-1046-2022 (O&M)

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 3188 Julfkar Vs. State of Haryana

[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

MOHAN SINGH

2022.11.29 18:01

I attest to the accuracy and

integrity of this document

- 3 -

CRR-1046-2022 (O&M)

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