Read Order: SULEMAN v. THE STATE (NCT OF DELHI) 

Tulip Kanth

New Delhi, August 5, 2022: Dismissing the bail application of a man, who was arrested when he was found in possession of 300 gms of heroine, the Delhi High Court has affirmed the view that default bail under Section 167 CrPC can only be availed before the filing of the charge sheet.

Referring to the judgments in Kishan Lal vs State, 1989 SCC OnLine Del 348 & Babu vs The State (Govt. Of NCT of Delhi) BAIL APPLN. 2075/2020, the Bench of Justice Swarana Kanta Sharma asserted, “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”.”

The petitioner had come before this Court pleading for the grant of bail as he was in custody in connection with an FIR under Sections 21 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act). On completion of the investigation, the charge sheet was filed without the Forensic Science Laboratory (FSL) report. The charge sheet already filed mentioned that the supplementary charge sheet would be filed on the receipt of the report from the forensic laboratory. The Petitioner was arrested when he was found in possession of 300 gms of heroine.

When the petitioner filed an application for bail in default under Section 167(2) of the Cr.P.C. before the Trial Court, claiming that the complete charge sheet was not filed within the stipulated time frame under Section 36A (4) of the NDPS Act,the Trial Court dismissed the same. The petitioner’s main submission was that the charge sheet was incomplete without FSL Report, since the IO did not know whether the substance recovered was actually a banned substance u/s 21 and 29 of the NDPS Act.

Considering that it had been repeatedly emphasized by various courts that the right to seek default bail is an indefeasible right provided to the accused, the Bench opined that object of the Default Bail is inherently linked to Article 21 of the Constitution of India, laying emphasis on safeguarding the life and personal liberty of the accused against arbitrary detention. 

Referring to the judgments in  Ravi Prakash Singh vs State of Bihar and M. Ravindran vs The Intelligence Officer, Directorate of Revenue Intelligence, the Bench asserted, “In the present case, the charge sheet was filed on 03.03.2021, however, without the FSL report. The charge sheet was thus filed within the limitation period prescribed under law.”

On the issue of FSL Report not being part of the Charge Sheet, the Bench discussed the judgment in Kishan Lal’s Case(Supra) wherein it was held that a police report does not need to enclose an expert opinion of Government Scientific expert with the charge sheet and thus, no bail was granted under Section 167(2) as the charge sheet was already filed within stipulated time. The judgment of the Top Court in Mohd. Arbaz vs State of NCT of Delhi SLP(Crl.) Nos. 8164-8166/2021 was also discussed by the Bench.

Thus, considering the settled law 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”, the Bench opined that in the present case although FSL Report had not been filed, however, the charge sheet was already filed within the time period as per law.

Also noting that the amount of contraband recovered from the accused was of commercial nature barring the accused from bail under Section 37 of the NDPS Act, the Bench dismissed the application for default bail.

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