Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(P&H) 372

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Jasjit Singh Bedi, J.
Sukhdev Sharma – Appellant
Versus
State Of Haryana – Respondent
CRR-1124-2022 (O & M)
Decided On : 25-07-2022

Advocates Appeared:
Ms. Garima Sharma, Advocate,, for the Appellant; Mr. Gaurav Bansal, AAG, Haryana, for the Respondent

The significance of the FSL report in establishing the nature of contraband and the accused's culpability under the NDPS Act, entitling the accused to default bail if the challan is submitted without the FSL report within the stipulated 180 days.

Headnote:
NDPS Act - Bail Application - Section 36-A of NDPS Act, Section 167(2) Cr.P.C. - Section 15 of NDPS Act - Section 173 Cr.P.C. - Section 190 Cr.P.C. - Section 173(2) Cr.P.C. - FSL Report - Default Bail
Fact of the Case:

The petitioner filed a bail application under Section 36-A of the NDPS Act read with Section 167(2) Cr.P.C. seeking default bail, as the challan was submitted without the FSL report within the stipulated 180 days.
Finding of the Court:

The Court allowed the petition and set aside the impugned order, ordering the petitioner's release on bail, emphasizing the importance of the FSL report in establishing a case under the NDPS Act.
Issues: The main issue was whether the incomplete challan, submitted without the FSL report within the stipulated 180 days, entitled the accused to default bail.
Ratio Decidendi: The Court relied on previous judgments emphasizing the significance of the FSL report in establishing the nature of contraband and the accused's culpability under the NDPS Act, and allowed the default bail.
Final Decision: The petition was allowed, and the impugned order was set aside, ordering the petitioner's release on bail, with the possibility of seeking cancellation/modification if a different view is taken by the Courts.

JUDGMENT

Jasjit Singh Bedi, J. (Oral). - The present revision petition has been directed against the order dated 19.05.2022 passed by the Judge, Special Court, Ambala, vide which the bail application filed by the petitioner under Section 36-A of the NDPS Act read with Section 167(2) Cr.P.C., seeking default bail was dismissed.

2. Briefly, FIR No.225 dated 28.08.2021 under Section 15 of the NDPS Act with Police Station Mullana, District Ambala, came to be registered in pursuance to the recovery of 17 kilos of poppy straw alongwith 54 kilos 700 grams of poppy husk from the petitioner and his co-accused.

3. The petitioner was arrested on 28.08.2021 and the report under Section 173(2) Cr.P.C. without the FSL report was submitted on 14.10.2021. 180 days lapsed on 28.02.2022. An application was moved under Section 167(2) Cr.P.C. on 18.05.2022 which came to be dismissed on 19.05.2022 (the impugned order).

4. The learned counsel for the petitioner inter alia contends that the Trial Court has wrongly dismissed the application filed by the petitioner under Section 167(2) Cr.P.C. read with Section 36-A of the NDPS Act for default bail without assigning any cogent reason and despite knowing the fact that an incomplete challan had been filed.

5. The learned counsel for the petitioner has placed reliance on a Division Bench judgment of this Court in 'Ajit Singh alias Jeeta and another versus State of Punjab, (Criminal Revision No.4659-2015 decided on 30.11.2018) wherein it has been held that a challan presented without the report of the Chemical Examiner has to be termed as an incomplete challan which deprived the Magistrate of relevant material to take cognizance. The submission of an incomplete challan within the requisite period of 180 days would essentially result in the grant of default bail to the accused unless an application was moved by the investigating agency apprising the Court about the status of the investigation with a prayer for extension of time to the satisfaction of the Court. The relevant extract of the judgment is reproduced below:-

'With respect to the question posed by the learned Single Judge regarding some of the contraband being identifiable through naked eye, inspection based on experience and knowledge, would be a great fallacy and we would respectfully state that it would be grossly unsafe to rely upon such an opinion based on naked eye inspection backed by experience or knowledge to arrive at a prima facie opinion of the commission of an offence to submit an accused to the rigors of trial by the Magistrate in the exercise of its powers under Section 190 Cr.P.C.

The only way that it can be done is to establish the nature of contraband on the basis of the Chemical Examiner's report and for this reason, the Chemical Examiner's report assumes an immense significance for the trial Court, to formulate an opinion as the very cognizance of an offence would depend on it. Non-inclusion of the Chemical Examiner's opinion in the report under Section 173 Cr.P.C. would expose the accused to unfounded dangers imperiling and endangering his liberty since the provisions of the N.D.P.S. Act in its applicability to a trial and conclusion are stringent in consequence.

For this reason as well, it is essential that the report of the Chemical Examiner be included in the report under Section 173 Cr.P.C. and without which it can at best be termed to be an incomplete challan depriving the Magistrate of relevant material take cognizance and if it is not submitted within the requisite period of 180 days, it would essentially result in a default benefit to the accused unless an application is moved by the Investigating Agency apprising the Court of status of investigation with a prayer for extension of time to the satisfaction of the Court.

We emphasize on the stringent aspect of the N.D.P.S. Act which would compellingly persuade us to take the aforesaid view. Without determining the nature and content of the contraband, it would be draconian to pr