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.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

226-A

CRR-1868-2022 (O&M)

Date of Decision: 09.01.2023

Gurjant Singh

.... Petitioner

Versus

State of Haryana

.... Respondent

CORAM: HON'BLE MR. JUSTICE ASHOK KUMAR VERMA

Present: -

Mr. AGS Dhillon, Advocate for the petitioner.

Mr. Munish Sharma, AAG, Haryana.

ASHOK KUMAR VERMA, J. (ORAL)

Custody certificate dated 06.01.2023 filed by learned counsel

for the State, is taken on record.

The petitioner has filed the present revision petition for

setting aside the impugned order dated 17.08.2022 passed by learned

Additional Sessions Judge, Karnal, whereby the application dated

08.08.2022 filed by the petitioner under Section 167(2) of the Code of

Criminal Procedure, 1973 (for short 'the Cr.P.C.') for grant of default bail

in case FIR No. 15 dated 05.01.2022 registered under Sections 18 and 25

of the NDPS Act at Police Station Assandh (Karnal), was dismissed.

As per prosecution story, on the basis of secret information,

the petitioner was arrested by the police on 05.01.2022 for having in his

un-authorized possession of 3 kgs of opium which falls within the ambit

of 'commercial quantity', after complying with mandatory provisions of

RISHU KATARIA

2023.01.10 16:52

I attest to the accuracy and

authenticity of this order/judgment

CRR-1868-2022

-2-

the NDPS Act.

Learned counsel for the petitioner contends that the challan

has been filed in the instant case on 01.07.2022 ,without the FSL report,

and therefore, he would be entitled to default bail in terms of Section 167

(2) of the Cr.P.C. The FSL report was filed on 09.08.2022 i.e. after expiry

of 180 days. The prosecution has not filed any application seeking

extension of time for fling the FSL report. He has placed reliance on the

judgments of this Court in CRR-2189-2022, 'Sahil vs. State of Haryana,

decided on 20.12.2022; CRR-682-2021 Gurpreet Kaur vs. State of

Haryana, decided on 06.12.2022; CRR-2078-2022 Nachhatro vs. State

of Haryana decided on 16.11.2022; CRR-1870 & 2775-2022, Sattar Vs.

State of Haryana and Neeraj @ Shera vs. State of Haryana,

respectively, decided on 22.12.2022; CRR-507-2021, Rajender vs. State

of Haryana, decided on 07.12.2022; CRR-1046-2022, Mukesh Pal @

Makhan Vs. State of Haryana, decided on 29.11.2022 and Richhpal @

Ganga and another vs. State of Haryana, decided on 29.10.2022.

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 16.09.2020

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.

Learned State counsel fairly conceded that that the FSL

report was filed on 09.08.2022 i.e. after the expiry of the stipulated period

of 180 days. He, however, contends that challan filed without even FSL

RISHU KATARIA

2023.01.10 16:52

I attest to the accuracy and

authenticity of this order/judgment

CRR-1868-2022

-3-

report would be a complete challan. Learned State counsel opposes the

present petition in terms of reply filed by way of an affidavit dated

08.10.2022.

I have heard learned counsel for the parties.

The FIR was registered against the petitioner for having in

his un-authorized possession of 3 kgs of opium which falls within the

ambit of 'commercial quantity'. This court in the case of State of

Haryana Vs. Dildar Ram @ Dari's, CRM-M-25600-2021 decided on

15.07.2021, had held that filing of the challan without FSL report would

not be regarded as a complete challan and, therefore, the accused would

be entitled to default bail in terms of Section 167(2) Cr.P.C.

The specific question with regard to the significance of filing

a challan under Section 173(2) Cr.P.C. without the FSL report in a case

under the NDPS Act had been referred to a Division Bench of this court.

The Divis