DEFAULT BAIL GRANTED IN NDPS CASE WHERE CHALLAN WAS FILED WITHOUT FORENSIC SCIENCE LAB (FSL) REPORT
Updated: Jul 15, 2022
Mr. Navkiran Singh, Advocate represented a client namely, Mr Singh who is an accused in NDPS Act at Police Station in Haryana in which 39800 Tramadol tablets were recovered from him. Accused was arrested on 26.10.2020 and Police had filed challan before the Trial Court without FSL report on 26.12.2020.
After the completion of 180 days i.e. the stipulated time period under the NDPS Act for completion of investigation and filing of Challan in cases where recovery is Commercial, accused had filed an application dated 09.08.2021 before ASJ, Karnal for release on default bail which was dismissed vide order dated 11.08.2021, this order of ASJ dated 11.08.2021 was now challenged before the Hon'ble High Court.
Mr. Navkiran Singh had argued that Firstly, challan which has been filed before the Trial Court without the FSL report is an incomplete Challan in view of the judgment delivered by the Hon'ble Division Bench of Punjab and Haryana Court in the case Ajit Singh @ Jeeta and another v. State of Punjab, CRR No. 4659 of 2015 in which the Hon’ble Division Bench has held that the report of FSL with regard to the nature of the recovered substance would go to the root of the matter and therefore, a challan filed without the FSL report with regard to the nature of the substance would be incomplete challan and would not satisfy the requirement envisaged under section 167 (2) Cr.P.C. and the accused in such circumstances, would be entitled to be released on default bail.
Also he referred to the latest order dated 13.12.2021 passed by the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No.8164-8166 of 2021 in which interim bail was granted to the Appellants in a case where the investigating agency has failed to file a police report under Section 173(2) of the Cr.P.C. within the stipulated period of one hundred and eighty days. Although, it is not disputed that a report was filed within the stipulated period, the Appellants had contended that the said report was incomplete as it was not accompanied by the report of the Chemical Examiner. The question of law in this case is left open and matter has been referred to CJI for appropriate orders.
Also, it was argued by the Advocate that even in the Punjab and Haryana High Court, due to difference in views expressed by some of Benches of this Hon’ble High Court, recently on the question of grant of default bail in case challan is filed without FSL Report in NDPS cases has been again referred to a Division Bench to consider the same in the case of Julfkar v. State of Haryana, CRR 1125 of 2020 vide order dated 16.09.2020 in which also concession of bail was granted to the petitioner.
The Hon’ble Bench of the Punjab and Haryana High Court, being satisfied by the arguments and finding merit in such arguments, decided to grant the default bail to Mr. Singh vide order dated 09.05.2022. The relevant part of the order is being reproduced as under for the readers to go through:-
Counsel for the petitioner has relied upon the order dated 13.12.2021, passed in Special Leave to Appeal (Crl.) No.8164-8166 of 2021, wherein the following order has been passed by the Hon’ble Supreme Court:-
“The main relief sought by the petitioners in these petitions is that they are entitled to bail in default on account of the fact that investigating agency has failed to file a police report under Section 173(2) of the Cr.P.C. within the stipulated period of one hundred and eighty days. Although, it is not disputed that a report was filed within the stipulated period, the petitioners contend that the said report was incomplete as it was not accompanied by the report of the Chemical Examiner.
Heard learned counsel for the parties and carefully perused the material placed on record.
Taking into consideration the fact that the petitioners has suffered incarceration for a period of more than 2 years and 11 months, we are inclined to grant interim bail to them for a period of three months from today subject to the terms and conditions to be imposed by the trial Court. The petitioners are, accordingly, directed to be enlarged on interim bail for a period of three months from today subject to the terms and conditions to be imposed by the trial Court. List these matters on 08.02.2022 for final disposal.”
Counsel for the petitioner has further submitted that the FSL report in the present case was also not submitted within the statutory period and therefore, the petitioner is entitled for default bail under Section 167(2) Cr.P.C.
Adjourned sine die, to await the order of the Hon’ble Supreme Court.”