O R D E R

In this proceeding, the petitioner was implicated for committing offences under various provisions of The Narcotic Drugs Signature Not Verified Digitaally snignded b y Psychotropic Substances Act, 1985 (hereinafter called “the NDPS Nirmala Negi Date: 2024.04.10

12:25:14 IST Reason:

Act”). Allegations against him involve recovery of 2 Kgs. of heroin and the main ground on which he approached the High Court was that the complete chargesheet was not submitted within the stipulated amount of time as per Section 167(2) of the Code of Criminal Procedure, 1973 (“the Code”). The petitioner was arrested on 07.04.2022 and the chargesheet was filed on 07.10.2024. At that point of time, the report of the Forensic Science Laboratory, identifying the specimen allegedly seized as the aforesaid contraband article, was not available. Invoking the provisions of Section 167(2) of the Code, the petitioner sought default-bail. The FSL Report was submitted later on 05.07.2023, confirming the seized material as heroin.

On behalf of the State, Mr. Nataraj, learned additional solicitor general, argued that the spot-testing kit used by the arresting team revealed that the seized material was heroin, but submission of the learned counsel for the petitioner is that such spot-testing kit results have no evidentiary value.

The point to be addressed in this matter is as to whether non-

furnishing of the FSL report with the chargesheet, within the prescribed time, would entitle an accused to default bail on the ground that it would be an incomplete chargesheet without such a report. The High Court in the impugned judgment rejected the bail plea of the petitioner, holding, inter- alia:-

“9. A Coordinate Bench of this Court in Mohd. Arbaz v. State (NCT of Delhi), 2020 SCC OnLine Del 2542, had taken a view that the accused would not be entitled to statutory bail merely because the FSL Report was not part of the chargesheet. An appeal against the said judgment is pending before the Supreme Court.

10. The Division Bench of this Court in Kishan Lal v.

State, 1989 SCC OnLine Del 348, has held that it is not mandatory to file the FSL Report along with the chargesheet. The relevant observations are set out below:

“19. We thus hold that under Section 173(2) of the Code there is no mandate that a police report must enclose the document purporting to be a report under the hand of a Government scientific expert. In the present cases, as cognizance of the offences taken by the Magistrate was proper and valid, no order releasing the petitioners on bail under Section

167(2) of the Code was required to be passed.”

11. A Coordinate Bench of this Court in Suleman v. The State (NCT of Delhi), 2022 SCC OnLine Del 2346, has held that non filing of the FSL Report with the chargesheet would not entitle the accused to grant of statutory bail.

Relevant observations are set out below:

“14. At present, the settled law persists in the view that non filing of FSL Report with the charge sheet does not fall within the realms of Section 173(2) of the Cr.P.C so as to consider it as "incomplete report". In the present case although FSL Report has not been filed, however, the charge sheet was already filed on 03.03.2021 within the time period as per law. Further, the amount of quantity recovered from the accused is of commercial nature baring the accused from bail under Section 37 of the NDPS Act.”

12. The aforesaid judgments were followed by another Coordinate Bench of this Court in Hashmat Mohammadi (supra), in which the grant of statutory bail was rejected by the Coordinate Bench despite non-filling of the FSL Report with the chargesheet.”

In the special leave petition filed by said Mohd. Arbaz [SLP (crl.) Nos.8164-8166/2021], interim bail was granted to the petitioner therein. A Co-ordinate Bench of this Court in the case, Central Bureau of Investigation vs. Kapil Wadhawan and Anr., 2024 INSC 58 dealt with the question of an incomplete chargesheet and its impact on the bail plea of an accused.