Cannot decide bail plea if copy of police report filed u/s 173(2) of CrPC is not annexed with petition, says P&H HC while considering NDPS matter

Read Order: Bittu v. State of Haryana 

Monika Rahar

Chandigarh, February 21, 2022: The Punjab and Haryana High Court has closed a bail petition under Section 439 of Cr.P.C. in a matter pertaining to the NDPS Act, on the ground that the accused- petitioner neither annexed the copy of the police report filed under Section 173(2) CrPC, nor did he say that the Trial Court did not supply the same to him under S. 207 CrPC.

The need for annexing the Police Report under Section 173(2) of Cr.P.C. was emphasized by the Court because the contraband recovered from the accused was of commercial quantity thus making the offence heinous, and therefore the Court needed to peruse the evidence of the prosecution to adjudicate the bail plea on merits. 

The Bench of Justice Anoop Chitkara held in this regard,  “The allegations in the case are serious and the offence heinous. To decide the bail petition on merits would require this Court to peruse the evidence collected by the prosecution. The petitioner has neither annexed the copy of the police report filed under Section 173(2) Cr.P.C. nor does he say that the Trial Court did not supply the same to him under S. 207 CrPC. There is no ground pleaded or explanation offered regarding reasons that constrained the petitioner from annexing those while filing the petition. Thus, the Court cannot decide the bail petition.”

The petitioner, incarcerated upon his arrest in an FIR registered under Section 22-B of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possessing a commercial quantity of tramadol, approached the High Court under Section 439 of Cr.P.C. seeking bail. 

The case of the petitioner’s counsel before the Court was that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family, while on the contrary, opposing the bail, the contention on behalf of the State was that drug menace was rapidly increasing in the State. 

The Court observed at the outset that when the petitioner filed the present bail petition, the police had filed its report under section 173 Cr.P.C. without annexing the report of any laboratory qua the contraband involved. Consequently, relying upon the ratio of the law laid down by a division bench of High Court itself in Inderjeet Singh @ Laddi v. State of Punjab, 2014 (3) RCR Crl. 953, the co-ordinate bench of the High Court granted interim bail to the petitioner. 

However, later State Counsel submitted that the FSL report was available now and the substance tested positive for Tramadol. On the category of the contraband recovered, the State argued that it fell in the commercial quantity category.

On the burden of Section 37 NDPS Act, the Court opined that since the alleged quantity of the contraband recovered from the main accused fell into the category of commercial quantity, so the burden was on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act, which he failed to do. 

Further, the Court observed that despite the filing of the police report under section 173 Cr.P.C., a copy of the same was not annexed by the petitioner with his petition. The Court also added that the petitioner did not deny the fact that he received the report under section 207 Cr.P.C. 

“Had the accused not received the documents in compliance with S. 207 CrPC, this Court would have certainly asked the respondent to produce the same. However, the petitioner does not claim the non-receipt of the challan. The accused receives copies of the Police report and the copies of the statements of witnesses free of cost”, asserted the Court. 

Given above, in the facts and circumstances peculiar to this case, the petition was closed, however, the petitioner was given the liberty to file a new petition on the same cause of action by annexing a copy of the police report and all necessary documents. 

Thus, the petition was dismissed.