Larger Bench may decide the question as to whether failure on prosecution’s part to include FSL report along with chargesheet within prescribed time, would entitle NDPS accused to default bail: Supreme Court
Justices Aniruddha Bose & Sanjay Kumar [19-03-2024]

Read Order:HANIF ANSARI v. STATE (GOVT OF NCT OF DELHI) [SC- Petition(s) for Special Leave to Appeal (Crl.) No(s). 15293/2023]

Tulip Kanth

New Delhi, April 16, 2024: While considering a bail plea pertaining to the NDPS Act, the Supreme Court has referred to a larger Bench the issue of deciding whether failure on the part of the prosecution to include the FSL report pertaining to the seized contraband articles along with the chargesheet, within the time specified in Section 167(2) of the CrPC read with Section 36A of the NDPS Act, would entitle the accused to default bail.

The petitioner, in this case, was implicated for committing offences under various provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPS Act). Allegations against him involved recovery of 2 Kgs of heroin and the main ground on which he approached the High Court was that the complete chargesheet was not submitted within the stipulated amount of time as per Section 167(2) of the Code of Criminal Procedure, 1973.  The petitioner was arrested on 07.04.2022 and the chargesheet was filed on 07.10.2024. At that point of time, the report of the Forensic Science Laboratory, identifying the specimen allegedly seized as the aforesaid contraband article, was not available. Invoking the provisions of Section 167(2) of the Code, the petitioner sought default-bail. The FSL Report was submitted later confirming the seized material as heroin.

The State Counsel argued that the spot-testing kit used by the arresting team revealed that the seized material was heroin, but submission of the petitioner was that such spot-testing kit results have no evidentiary value.

The issue before the Division Bench of Justice Aniruddha Bose & Justice Sanjay Kumar was whether non furnishing of the FSL report with the chargesheet, within the prescribed time, would entitle an accused to default bail on the ground that it would be an incomplete chargesheet without such a report.

It was noticed by the Bench that the lead matter on this point is the case of Directorate of Enforcement Vs. Manpreet Singh Talwar [SLP(Crl.) No.5724 of 2023], which is still pending before a three-Judge Bench of the Top Court. It was noted that there are many other orders where similar questions of law are involved. But interim bail has not been granted in every tagged petition. 

The Bench made it clear that it has been declined in the cases of Pabitra Narayan Pradhan -vs- The State (NGT) of Delhi [SLP (crl.) Diary No.43791 of 2023], Shankar @ Shiva Maheshwar Savai -vs- The State of Gujarat (SLP (Crl.) No.2562/2023) but in none of these cases, it has been finally determined as to whether failure on the part of the prosecution to include the FSL report along with the chargesheet in relation to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 would automatically entitle the accused to default bail or not.

The Top Court observed that certain other factors like the quantity of the contraband articles being seized and period of incarceration were considered in the aforesaid orders while granting interim bail to the petitioner(s)/applicant(s).

The petitioner's counsel did not press for an interim bail at this stage but wanted the point of law to be adjudicated.

Thus, the Bench held, “In view of there being diversity of views of different Benches of this Court even on the question of granting interim bail, we are of the opinion that a larger Bench may decide the question as to whether failure on the part of the prosecution to include the FSL report pertaining to the seized contraband article(s) along with the chargesheet, within the time specified in Section 167(2) of the Code read with Section 36A of the NDPS Act, would entitle the accused to default bail or not.”