The FSL report is integral to the case of prosecution under the NDPS Act, and conflicting judgments can lead to the grant of bail.

JUDGMENT

Gurvinder Singh Gill, J. - The petitioner assails order dated 5.7.2021 passed by learned Additional Sessions Judge, Sirsa vide which an application filed by the petitioner under provisions of Section 167(2) Cr.P.C. for grant of bail has been declined.

2. A few facts necessary to notice for disposal of this petition are that as per case of prosecution on 20.12.2020 when a police party headed by ASI Ashok Kumar was patrolling in the area of village Jandwala Bishnoian, then a tractor was seen coming on the road and the driver of the said tractor upon noticing the police party abruptly tried to turn his tractor towards the fields but in the said process, his tractor stopped. The said person was apprehended and upon enquiry, he disclosed his name as Vinay Kumar @ Vicky. Upon checking a plastic bucket tied with the mudguard of the tractor, 7000 tablets of 'Clovidol-10 SR' (Tramadol Hydrochloride) were recovered.

3. The matter was investigated by the police and a report under Section 173 Cr.P.C. was presented before the trial Court on 4.3.2021. The said report was, however, not accompanied by the report of FSL.

4. The period of 180 days, which is mandated for filing of challan as per provisions of NDPS Act read with Section 167 Cr.P.C. expired on 20.6.2021. Since the prosecution did not file the FSL report even by the said date, the petitioner moved an application under Section 167(2) Cr.P.C. for his release on bail on 22.6.2021 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 5.7.2021, which has been assailed by way of filing the instant petition.

5. The learned counsel for the petitioner has submitted that the trial Court fell in error in relying upon a Full Bench judgment rendered by this Court in AIR 1978 Punjab 341 - State of Haryana Vs. Mehal Singh and others whereas the said judgment did not pertain to an offence under the NDPS Act and has infact been distinguished by a subsequent judgment dated 30.11.2018 of a Division Bench in Ajit Singh (a) Jeeta Vs. State of Punjab [passed upon reference in Crl Rev. No. 4659 of 2015 and other cases].

6. The learned counsel has next 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-1125-20201 to consider as to whether a challan filed without report of FSL would be an incomplete challan.

7. The learned counsel, while referring to a judgment of this Court rendered in State of Haryana Vs. Dildar Ram (a) Dan 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 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 had has been referred to a Division Bench and is still pending.

8. 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 180 days in the instant instance, no case for grant of bail is made out.

9. I have considered rival submissions addressed before this Court.

10. 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 ne