In NDPS cases, entire case of prosecution falls to ground if report of FSL is not present: P&H HC

Read Order: Vinay Kumar @ Vicky v. State of Haryana

Tulip Kanth

Chandigarh, October 20, 2021: While ordering the petitioner to be released on bail, in a case pertaining to the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS), the Punjab and Haryana High Court has opined that the report of the FSL forms the foundation of the case of prosecution and in case the same is not there the entire case of prosecution falls to ground.

The Bench of Justice Gurvinder Singh Gill observed that a case under the Act can only survive in case the prosecution is able to establish that the article recovered is indeed a contraband and which can only be established on the basis of its chemical examination, which is normally done through FSL established by the Government.

The petitioner had assailed an Order dated July 5, 2021 passed by Additional Sessions Judge, Sirsa by which an application filed by the petitioner under provisions of Section 167(2) Cr.P.C. for grant of bail was declined.

As per the case of prosecution on December 20,2020 when a police party was patrolling in the area of village Jandwala Bishnoian, a tractor was seen coming on the road and the driver of the said tractor upon noticing the police abruptly tried to turn his tractor towards the fields but in the said process, his tractor stopped. The said person was apprehended and upon enquiry, he disclosed his name as Vinay Kumar @ Vicky. Upon checking a plastic bucket tied with the mudguard of the tractor, 7000 tablets of ‘Clovidol-10 SR’ (Tramadol Hydrochloride) were recovered.

Later, a report under Section 173 Cr.P.C. was presented before the Trial Court but the said report was, however, not accompanied by the report of FSL.

The period of 180 days, which is mandated for filing of chargesheet as per provisions of NDPS Act read with Section 167 Cr.P.C. expired on June  20,2021. Since the prosecution did not file the FSL report even by the said date, the petitioner moved an application under Section 167(2) Cr.P.C. for his release on bail on June 22, 2021 on the ground that in the absence of report of FSL, the chargesheet could not be said to be complete. The said application was dismissed by the Trial Court and hence, the instant petition.

The Bench stated that  it was no doubt correct that the Supreme Court and also a full Bench of this Court have held that a challan even if not accompanied by a report of the Chemical Examiner or of the expert cannot be said to be incomplete. However, the Bench highlighted that the said cases did not pertain to an offence under the NDPS Act.

“A case under the NDPS Act can only survive in case the prosecution is able to establish that the article recovered is indeed a contraband and which can only be established on the basis of its chemical examination, which is normally got done through FSL established by the Government. In other words, the report of the FSL forms the foundation of the case of prosecution and in case the same is not there the entire case of prosecution falls to ground”, noted the Court.

Justice Gill  also added that, in other cases say any injury or hurt or murder case under IPC, even the ocular version coupled with some medical evidence or some other circumstantial evidence may suffice to bring home the guilt of the accused.

According to the Court, though, a report of an expert, if sought, pertaining to some blood stains or comparison of handwriting, ballistic report, could be helpful to establish the case of the prosecution for such offences under IPC or some other Acts but cannot be said to be indispensable in each and every case and even in the absence of such reports, the prosecution may well be able to establish its case.

It was also clarified that the contention of the petitioner that the report of FSL form very foundation of the case of prosecution and is an integral part of the chargesheet cannot be brushed aside.

In any case, since there were some conflicting judgments of this Court and the matter stood referred to a Division Bench and was still subjudice, this Court extended the concession of bail in terms of Section 167(2) Cr.P.C., to the petitioner while also keeping in view the fact that the petitioner had been behind bars since the last more than 9 months and was not stated to be involved in any other case.

Accepting the present petition, the Bench set aside the impugned order and the ordered the petitioner to be released on bail on his furnishing bail bonds/surety bonds to the satisfaction of Trial Court/Chief Judicial Magistrate/Duty Magistrate concerned.