Read Order: Duo Jou Vireimi v. State Of Haryana

Monika Rahar

Chandigarh, April 7, 2022: While dealing with an NDPS Act matter, the High Court of Punjab and Haryana has held that the report of the Chemical Examiner/FSL is to be included in the report under Section 173 Cr.P.C. and without which it will be termed as an incomplete charge sheet, depriving the Magistrate of relevant material to take cognizance. 

The High Court further held that if the report of the Chemical Examiner/FSL 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 the status of investigation with a prayer for extension of time to the satisfaction of the Court. 

The Bench of Justice Sant Parkash was dealing with two petitions first of which was a revision preferred under Section 401 of the Code of Criminal Procedure, 1973 for setting aside the order of the Additional Sessions Judge, Panipat whereby application filed by him for grant of bail in view of Section 167(2) Cr.P.C. was dismissed in an FIR registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 whereas, the second petition was filed by the petitioner under Section 439 Cr.P.C. for grant of regular bail pending trial in the aforesaid case. 

The petitioner (a foreigner) was apprehended by the Police for carrying heroin in a packet of corn flakes. The heroine (on being weighed without a polythene bag) was found to be 425 grams. Hence the present FIR was registered and after completion of the investigation, the report under Section 173 Cr.P.C. was presented before the trial Court against the petitioner without receiving the chemical examiner report/FSL. 

Since the Police did not file the FSL report along with the report under Section 173(2) of the Cr.P.C. despite the expiry of 180 days, the petitioner/accused filed application for grant of bail on the ground that since the FSL report was not submitted in the Court and thus in view of incomplete FIR, the petitioner sought grant of default bail under Section 167(2) of the Cr.P.C.

This application was dismissed, hence the present revision was filed. 

The petitioner’s counsel argued that complete challan was not presented despite the expiry of the statutory period of 180 days from the date of arrest of the petitioner as such the petitioner was entitled to be released on default bail as per the provision of Section 167(2) Cr.P.C. it was further argued that the petitioner could not be denied default bail on the ground of merits of the case not warranting the same. The right of the petitioner to grant default bail was not even defeated by the filing of the FSL report subsequently, argued the counsel while adding that the impugned order suffered from material illegality and it could be challenged by filing the revision petition.

At the very outset, the Court made reference to the case of Ranjit Singh @ Rana Vs. State of Punjab, CRR No.2087 of 2014 [P&H HC] wherein it was held that the final order passed under Section 167(2) of the Cr.P.C. read with Section 36-A(4) of the NDPS Act can be challenged only by way of revision and not by filing a petition under Section 439 of the Cr.P.C. or under Section 482 of the Cr.P.C. and the petitioner has accordingly filed present revision petition under Section 401 read with Section 167(2) of the Cr.P.C.

On the factual aspects of the Case, the Court noted that the petitioner was apprehended on suspicion on February 18, 2019, and 425 grams of heroin falling in the category of commercial quantity was allegedly recovered from the conscious possession of the petitioner attracting provisions of Section 36-A(4) of the NDPS Act which extends the period for the detention of the accused up to one hundred and eighty days and further extends the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days, were applicable to the present case. 

Further, the Court observed that Charge-sheet was filed by the Police within the prescribed timelimit but the said report was filed without accompanying the FSL Report and the same was not filed despite the expiry of 180 days from the date of arrest of the petitioner. Thus, the Court opined that on expiry of the period of 180 days indefeasible right to grant default bail was accrued to the petitioner.

On the filing of charge sheet without a chemical examiner report, the Court referred to Ravinder @ Binder Versus State of Haryana 2015 Vol. IV, RCR (Criminal) 441 [P&H HC], wherein it was observed that a report under Section 173 (2) submitted within 90 days but without attaching a chemical examiner report, is an incomplete charge sheet and the Court is not competent to take cognizance of the offence on the incomplete charge sheet and held that the accused has indefeasible right to be released on bail as per the provision of Section 167 (2) Cr.P.C. 

The Lower Court dismissed the petitioner’s application, on the ground that the FSL report is a corroborative piece of evidence and as such, it cannot be said that the investigation has not been completed. Negating this reasoning, the High Court opined that report of the Chemical Examiner/FSL is to be included in the report under Section 173 Cr.P.C. and without which it will be termed as an incomplete challan, depriving the Magistrate of relevant material to 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 the status of investigation with a prayer for extension of time to the satisfaction of the Court. 

In light of the above proposition of law, the Court opined that the case record clearly deciphered that the police/prosecution failed to submit the Chemical Examiner/Forensic Science Laboratory Report within the statutory period of 180 days from the date of arrest of the petitioner and the Public Prosecutor failed to seek an extension from the Court before the expiry of 180 days. 

On the provisions of default bail, the Court opined that Section 167(2) Cr.P.C. creates an indefeasible right in an accused person, on account of the ‘default’ by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. Thus, an indefeasible right to be enlarged on bail accrues in favour of the accused, if the police fail to complete the investigation and put up a challan against him in accordance with law under Section 173 Cr.P.C., held the Court. 

From the above-said observations, the Court concluded that the impugned order suffered from material illegality and was thus liable to be set aside and the petitioner was entitled to grant of default bail under Section 167 (2) of the Cr.P.C. on the ground of filing an incomplete charge-sheet report under Section 173(2) of the Cr.P.C. by the police on account of not filing the Chemical Examiner/Forensic Science Laboratory Report within the period of 180 days from the date of arrest of the petitioner. 

Accordingly, the petitioner was ordered to be released on default bail.

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