Read Order: Rohtash @ Raju v. State of Haryana

Monika Rahar

Chandigarh, June 2, 2022: The Punjab and Haryana High Court has recently held that the law requires that an application under Section 36A(4) NDPS Act should be supported by a report of public prosecutor, indicating the progress of the investigation and further specifying the compelling reasons for seeking the detention of the accused beyond the period of 180 days. 

The Bench of Justice Karamjit Singh also added, “The report of the FSL goes to the root of the case and is a material document and as such, filing of challan without the same is not to be treated as complete challan.”

The petitioner was seeking default bail in a criminal case having FIR registered under Sections 22-C/27A NDPS Act, at Police Station Sadar Dabwali.

The counsel for the petitioner contended that as per the prosecution version, the petitioner was arrested in connection with commercial quantity of contraband and was presented in the court on September 23, 2021 and the challan was presented against the petitioner on March 17, 2022 by the police. The counsel further contended that the said challan was without the FSL report and therefore, was to be considered as incomplete challan. 

The counsel for the petitioner further contended that no application was moved by the public prosecutor or additional public prosecutor, as per the provisions of Section 36A(4) NDPS Act seeking extension of time to complete the investigation in the present case and that that as per prosecution such an application, was filed on March 17, 2022 and indisputably same was allowed by the trial Court vide order dated March 31, 2022. 

The counsel further contended that for seeking extension of time, the public prosecutor after an independent application of mind to the request of the investigating agency, was required to make a report to the Court indicating the progress of investigation. 

It was, however, added in the present case no such report was submitted along and as such, the order of March 31, was not at all justified. It was also the counsel’s case that the petitioner’s right to default bail accrued on the presentation of the application dated March 23, 2022 filed under Section 167(2) Cr.P.C., as the challan which was filed by the police on March 17, 2022 was without any FSL and thus, was to be considered as incomplete challan. 

The counsel for the State on the other hand contended that there was no illegality in the impugned order and that the challan was filed on March 17, 2022 and along with the same an application under Section 36A(4) NDPS Act was moved and the request for seeking extension of time was accepted by the trial Court and resultantly the bail application moved by the petitioner under Section 167(2) Cr.P.C was dismissed. The State counsel further contended that admittedly the aforesaid challan was filed without the FSL report but still it cannot be treated as an incomplete challan. 

After considering these submissions, the Court observed that the petitioner was sent to custody on September 23, 2021 and the police presented challan on March 17, 2022, without filing the FSL report. Along with the challan, the Court noted, the SHO of the concerned police station filed an application under Section 36A(4) NDPS Act seeking extension of time but the same was not forwarded by the public prosecutor or additional public prosecutor.

Thus, in this light, the Court observed that the law required that such an application should be supported by a report of the public prosecutor, which indicates the progress of the investigation and further specify the compelling reasons for seeking the detention of the accused beyond the period of 180 days. 

Applying this legal position to the present case, the Court added that in the case in hand, no such report of public prosecutor was filed along with the application moved under Section 36A(4) of NDPS Act, so, the aforesaid request for extension of time made by the prosecution agency was not in accordance with law. Thus, the order dated March 31, 2022, passed by the trial Court was held by the Court to be not sustainable in the eyes of law. 

Further, it was the Court’s opinion that the report of the FSL goes to the root of the case and is a material document and as such, filing of challan without the same is not to be treated as complete challan.

Thus, in the light of the above, the impugned order rejecting the default bail to the petitioner was set aside and he was ordered to be released on default bail on furnishing requisite bail bonds to the satisfaction of concerned trial Court/Special Judge (Duty).  

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