Sagar Parshuram Joshi vs The State Of Maharashtra
2021 Latest Caselaw 972 Bom

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Shambhavi
N. Shivgan
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed         CRIMINAL APPELLATE JURISDICTION
by Shambhavi N.
Shivgan
Date: 2021.01.15             BAIL APPLICATION (ST) NO.4761 OF 2020
11:35:15 +0530

                   Mr. Sagar Parshuram Joshi
                   Aged: 27 Yrs., Occu: Service,
                   Residing at House No.71, More
                   Nagari Road, Manergaon,
                   Joshipada, Ulhasnagar-4,
                   District Thane
                   [Presently lodged in Thane
                   Central Prison]                         ... Applicant
                                                       (Org. Accd.No.3)
                         Vs
                   The State of Maharashtra
                   (At the instance of Kopar Khairane
                   Police Station vide C.R.No.II-369 of 2019)
                                                         ... Respondent
                                               ...

                   Mr. Sanjeev Kadam i/by Mr. Kapil Shetye for the
                   Applicant.

                   Ms. P.P.Shinde, APP for the Respondent-State.

                                 CORAM : SANDEEP K. SHINDE J.
                                 RESERVED ON :  7th JANUARY, 2021.
                                 PRONOUNCED ON: 15th JANUARY, 2021.

                   JUDGMENT :

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Applicant, who is accused of having committed an

offence punishable under Section 8(C)(ii), 22, 29 of the

Narcotic Drugs and Psychotropic Substances Act, 1985

('NDPS Act' for short), by this application, seeks bail.

2 Whether in a case under the NDPS Act, report

presented under Section 173(2) of the Code of Criminal

Procedure, 1973 ('Cr.P.C.' for short), is an incomplete

report, if presented without the report of Chemical

Examiner, Forensic Science Laboratory, is a question to be

decided in this application.

3 In this context, certain dates and events

regarding which, there is no dispute, needs to be referred

to:

(I) That the application was arrested on 12 th October,

2019 .

(ii) On 18th February, 2020 i.e. within 180 days , charge-

sheet was fledd but without any report from Chemical

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Analyser

(iii) Prosecution asserts that, seized material was

'amphetamine'd narcotic drug.

(iv) Admittedly, as a case relates to commercial quantity,

maximum period for which detention pending investigation

could be authorised, without granting bail would be 180

days in view of the provisions of Sub-section (4) of Section

36A of the NDPS Act, from the date on which accused would

be frst remanded into custodyd

(v) Admittedly, no extention of time was sought for

completing investigation by the prosecution, meaning

thereby period of 180 days referred to in Sub-section (4) of

Section 36A was not extended by the Special Court.

(vi) Two successive bail applicationsd one seeking release on

bail in accordance with the frst proviso to Sub-section (2) of

Section 167 of the Cr.P.C. and another were rejected by the

learned Special Court.

4             Heard Mr. Kadam, the learned counsel for the


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applicant and Ms. Shinde, the learned Additional Public

Prosecutor for the State.

5 Question is, whether, presentation of report under

Section 173(2) of the Cr.P.C. by police without report of the

Chemical Analyser amounts to 'incomplete report' and in

absence of any extention of time under Section 36-A(4) of

the NDPS Act, accused is entitled for bail under Section

167(2) of the Cr.P.C.

6 The very question is pending for consideration

before the larger Bench of the Punjab & Haryana Court in

Criminal Revision No.1125 of 2020.

7 Mr. Kadam, learned counsel for the applicant

would submit that unless contraband identifed as narcotic

drug or psychotropic substance, fnal report "Charge-sheet"

presented by the police without report of Chemical Analyser

amounts to incomplete investigation. It is next submitted

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that report of Chemical Analyser is foundation on the basis

of which Magistrate can proceed to take cognizance and,

therefore, Chemical Analyser's report assumes importance.

Thus, Mr. Kadam submits that unless and until sample,

which has been drawn by the prosecution conforms with

article, which is seized during the investigation, i.e.,

emphetamine, the Court may not be in a position to take

cognizance of the offence. Mr. Kadam thus, relies upon the

judgment in the case of Suni Vasantrao Phulbande &

Anr. v. State of Maharashtra 2002(3) Mh.L.J. 689. He

would further submit that even assuming Chemical

Analyser's report was not made available to the

Investigating Ofcer on or before 180th day, prosecution

could have sought extention to complete the investigation

taking recourse to Section 36-A(4) of the NDPS Act.

8 In support of his submission, Mr. Kadam has relied

on following judgments:

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          (1)     Ajit Singh Alias Jeeta & Anr. v. State

of Punjab in Criminal Revision No.4659 of 2015 of Punjab & Haryana High Court;

(2) Sunil Vasantrao Phulbande v. State of Maharashtra 2002(3) Mh.L.J.689;

(3) Manik Sahebrao Chaugule v. State of Maharashtra in Criminal Bail Application No.241 of 2017 of this Courtd

(4) Ranjeet Manohar Machrekar v. State of Maharashtra in Criminal Bail Application No.509 of 2014 of this Courtd

(5) Seema Raju Panchariya v. State of Maharashtra in Bail Application No.65 of 2018 of this Court (Bench at Aurangabad).

9 So far as the judgment of Punjab & Haryana Court

in the case of Ajit Singh @ Jita (Supra) is concerned, it

appears contraband was being identifed by the

Investigating Ofcer through naked eye inspection, based

on experience and knowledge, who arrived at prima-facie

opinion of the commission of offence under the NDPS Act. In

view of these facts, Division Bench has held as only way

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that it can be done, is to establish nature of contraband on

the basis of Chemical Analyser report and for this reason,

his report assumes immense signifcance for the Trial court

for formulate an opinion, as the very cognizance of the

offence would depend on it. Thus, held that "non-inclusion

of Chemical Analyser's opinion in the report under Section

173 would expose the accused to unfounded danger

imperiling and endangering his liberty since provisions of

the NDPS Act in its applicability in its trial and conclusions

are stringent in consonance." In all other cases cited by Mr.

Kadam as it appears from the facts therein that neither

extention was sought under Section 36A(4) of the NDPS Act

nor, feld test was conducted. It is under these peculiar

facts in all cases cited by Mr. Kadam, applicants were

directed to be released on bail.

10 The State on the other hand, relied on the

judgment of this Court in the case of Rafael Palafox

Garcia v. Union of India 2009 Cri.L.J.446 to contend

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that in the case at hand, there is reference to test of

contraband being conducted at the spot on feld test kit and

the resultant colour matched colour pattern for the drug

and, therefore, report contains all such facts mentioned in

terms of Section 173(2) of the Cr.P.C. Submission is that

report tantamounts to fnal report evidencing completion of

investigation.

11 The State has also relied on the judgment of this

Court in the case of Shrihari Valse v. State of

Maharashtra in Criminal Bail Application No.3284 of

2018 to contend that once the substance is tested at spot

by feld test kit by drawing the panchanama mentioning the

fact therein that feld test has been conducted and such

panchanama now being a part of the charge-sheet, a report

fled by the police without opinion of the Chemical Analyser

cannot be said to be incomplete report and would not

preclude the Court from taking cognizance of the offence.

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12          In the case at hand admittedly, on personal

search      of   the   applicant,     psychotropic      substance

amphetamine, weighing 65 gms was recovered and seized

in presence of independent panchas, upon compliance of

statutory provisions/safeguards under the NDPS Act.

Whereupon ofcer drew the samples and tested the

substance by feld test kit. The substance tested and

resultant colour that matched colour pattern of the drug

(dark brown) revealing, it was a psychotropic substance at

Sr.No.152 of the Table annexed to the Act. I have perused

the complaint and the spot panchanma wherein it is stated

that ofcers had tested suspect substance, by feld test kit.

13 Mr. Kadam, learned counsel for the applicant,

would contend that pre-trap panchanama does not show

that raiding party was equipped with feld test kit. It is,

therefore, submitted that neither test was conducted nor

report of alleged "Field Test" has been fled along with the

charge-sheet. Submission is that, bare reference in

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panchanama, of the test being conducted at the spot by

feld test kit, which matched colour pattern of the drug

allegedly seized is neither "Sufcient Evidence" nor it is a

ground of suspicion to prima-facie justify commission of

offence by the applicant. Mr. Kadam, therefore, submits that

fnal report submitted by the prosecution without opinion of

Chemical Analyser amounts to incomplete investigation

and, therefore, indefeasible right has accrued to the

accused to claim his release on bail in accordance with the

frst proviso to Sub-section (2) of Section 167 of the Cr.P.C.

14 Mr. Kadam, learned counsel for the applicant, has

taken me through the charge-sheet and pointed out out of

four accused, two of them, Tukaram Thakre and Sagar

Parshuram Joshi (Applicant) were working with M/s. Watson

Pharma Pvt Ltd. He has invited my attention to the

panchanama dated 15th October, 2019, which suggests that

accused Tukaram Thakre disclosed to police that while

working with M/s. Watson Pharma Pvt. Ltd. at Ambernath,

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he had stolen white powder from the company. In pursuant

to this information, Investigating Ofcer sought

confrmation from the said company. In response thereto,

General Manager of M/s. Watson Pharma Pvt. Ltd. confrmed

that Tukaram Thakre and Sagar Joshi were working as

operator and house-keeper as contractual employees.

However, the said company vide letter dated 16 th October,

2019 denied, it manufactures amphetamine (substance

recovered from the applicant and the co-accused). Along

with the letter, the said Company has forwarded a list of

products manufactured at site and the raw material

required for the same.

15 It appears from the investigation that ofcer had

taken sample of 'Ramlatan powder' from the said company,

which was allegedly stolen by Tukaram Thakre, accused

no.4 and eventually recovered from all the accused as

"Narcotic Substance". Seizure panchanama dated 6 th

November, 2019 shows that the sample of 'Ramlatan

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powder' has been seized for further investigation and

report.

16 Relying on aforesaid material, Mr. Kadam, learned

counsel for the applicant submitted that the applicant and

co-accused were arrested on 11th October, 2019 on the

suspicion that "white powder" recovered from was

amphetamine after testing the powder with the reagents on

feld test kit. Mr. Kadam submits, white powder samples

drawn from the company M/s. Watson Pharma Pvt. Ltd.,

employer of the applicant resembles in colour with white

powder recovered from the applicant. However,

investigation record does not show that the sample

collected/drawn from the company was sent to Chemical

Analyser. It is, therefore, submitted, had the feld ofcers

tested the powder recovered from company on the feld test

kit and had reports, been fled on record, it would have

assisted the Court to decide this application and appreciate

prosecution case. Mr. Kadam, therefore, submits, in absence

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of explanation for not conducting the 'feld test' of the

powder drawn/collected from the company, it creates doubt

and proposes uncertainty of prosecution case. Therefore, it

is one of the circumstances, to be taken into consideration

while deciding this application. He submits, even otherwise

report of feld test kit cannot be relied on as test by kit only

gives presumptive/preliminary test and needs further

confrmation from the Chemical Analyser.

17 Applicant seeks his release on bail on the

aforesaid grounds.

18 Before adverting to the arguments of the learned

counsel for the applicant, it may be stated that the Director

General of the Narcotic Control Bureau has issued a feld

ofcer's hand-book for guidance of Drugs Law Enforcement

Ofcers. Chapter VI refers to, 'Drug Detection Kit', the

relevant paragraph is as under:

"Drug Detection Kit: These kits assist the DLEO in forming a reasonable belief about a substance being a Shivgan

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drug. The kit is a portable case containing different reagents that are used to test a small quantity of the substance recovered and determine the nature of the substance based on the color range resulting from the reactions of the suspect substance with the reagents. There are three types of test kits used at present :Narcotic Drugs Kit to test traditional drugs like Ganja, Charas, Opium Heroin, Cocaine, and the liked Precursor Chemicals Kit to test Acetic Anhydride, Ephedrine, Pseudoephedrine etc. and Ketamine Kit. All these kits are very user friendly and come with an instruction sheet to guide the the user draw appropriate inference. It is essential that the DLEO conducts the test, matches the resultant color and forms a reasonable belief that the substance gives positive color pattern for a drug. This process must be recorded in the Panchanama."

19 I have perused the hand-book. Chapter VII of the

hand-book is about 'Drug Identifcation and Field Testing'.

Chapter I enumerates, check-list, for Drugs Law

Enforcement Ofcers, while executing the feld operation, to

ensure that the Drugs Law Enforcement Ofcer does not

overlook anything, which might subsequently affect the

case. Item No.10 in the check-list reads as under:

"10. Were all recovered suspect substances feld tested with Drug Detection Kits/Precursor Testing Kits and the matching colour results to show presence of ND, PS or CS and was it all documented ?"

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. In relation to the identifcation of drug, it states

"Identification: Natural narcotic drugs like Ganja, Charas, Opium Poppy can be easily identifed by their color, texture and smell. But, most of the drugs abused today are refned and processed substances and are mostly circulated as white, off-white or brown powder, crystals or fakes or colorless odorless liquids. It is very difcult to identify a substance as a drug unless it is tested with different reagents."

. So far as the Drug Detection Kit is concerned, it is

stated in the hand-book that these kits assist Drugs Law

Enforcement Ofcers in forming reasonable belief about

substance being a drug. The kit is a portable case

containing different reagents that are used to test a small

quantity of substance recovered and to determine the

nature of substance based on the colour range resulting

from the reactions of the suspect substance with reagents.

It is stated that this process must be recorded in the

panchanama.

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20 Obviously, these tests are only indicative and

preliminary tests and need further confrmation for which

sample is sent to a laboratory. Instructions in Hand-book

also suggest, preparation of the test memo in triplicate on

the spot and facsimile in print of seal used in sealing the

envelopes, to be afxed on test memos (emphasis

supplied).

21 In the case at hand, admittedly, it is recorded in

the panchanama that test was conducted on the feld drug

kit and the resultant colour pattern, (dark brown) conforms

and matched suspect substance i.e. amphetamine,

recovered from the person of the applicant. However, it

may be stated that natural narcotic drug like Ganja, Charas,

Opium Poppy can be easily identifed by their colour,

texture or smell but most of the drugs abused today are

refned and processed substances and are mostly circulated

as white, off-white or brown powder, crystals or fakes or

colorless, odorless liquids and, therefore, it is very difcult

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to identify the substance as a 'drug' unless it is tested with

different reagents. A reagent is a substance or compound

added to a system to cause chemical reaction. In the case

at hand, prosecution has not pointed out with which re-

agent the suspect substance was tested by the feld

ofcers. Hand-book in Chapter VII as an illustration, has just

given few visuals with which the ofcers should familiarize

during the drugs law enforcement. Obviously, it means, the

Narcotic Control Bureau, Ministry of Home Affairs,

Government of India has not prescribed the standards to

establish minimum requirements for colour test, and

methods of testing reagents to determine nature of

substance, based on colour range resulting from reaction

with reagent. In the case at hand, it is prosecution's case

that white powder (suspect substance) recovered from the

person of the applicant and the co-accused when tested

with reagents, it produced dark brown colour, which

matches colour pattern for the amphetamine. However,

there are no documented set standards as to which

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substance upon testing with reagent/s would produce,

which colour. Thus, all and every aspect of feld testing is

left to the experience, knowledge and perception of Law

Enforcement Ofcer.

22 Be that as it may, the National Institute of Justice,

US Department of Justice has set the NIJ standards for

colour test reagents/kits for preliminary identifcation of the

drugs of abuse. Table 1 in Chapter IV itemize particulars of

fnal colours produced by the reagents with various drugs

and other substances. However, a document of this kind, if

any, by Ministry of Home Affairs is not made available by

the prosecution to prima-facie ascertain and satisfy

authenticity of test result of the feld test conducted of the

suspect substance. Nor memos of test are forming part of

the charge-sheet. Thus, in my view, bare reference of, feld

test being conducted, on the kit in the panchanama is not

"sufcient material" to detain the applicant in the jail, in

absence of report from the Chemical Analyser. Besides,

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there is no such other material to prima-facie accept that

'suspect substance' recovered from the applicant was

amphetamine. It may not be overlooked that the Chemical

Analyser's report is an essential, integral and inherent part

of the investigation under the NDPS Ac and would lay

foundation of accused's culpability without which

Magistrate is not able to form an opinion and take

cognizance of the accused involved in the commission of

offence under the Act. In the case at hand, prosecution

relies on the test conducted on the feld and reference of

such test being made in the panchanama. Except this,

there is neither 'test memos' of such tests on record

though, the Ministry of Home Affairs in the hand-book

suggested feld ofcers' to prepare the test memo in

triplicate (emphasis supplied). Additionally, in absence of

documented, standards of colour test reagents for

preliminary identifcation of drugs has not been made

available to this Court. Therefore, entire feld test process of

the suspect substance, with reagents and colour produced,

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whether matches colour pattern of particular drug or not is

left to the understanding of the feld ofcers which is

arbitrary. Thus, prima-facie to accept the authenticity of the

preliminary test of the suspect substance recovered from

the accused persons, prosecution is expected to place on

record some more particulars or atleast test memos, which

has not been done in the case at hand. Besides, it may also

be stated that though prosecution has collected/drawn

samples of the powder from a company where applicant

and another co-accused were working neither preliminary

report of that sample has been produced on record.

Question to be posed, as to why feld ofcer did not conduct

the feld test of the samples of 'Ramlatan powder' collected

from the company where accused were working. Had the

prosecution conducted this test and place on record 'test

memos', would have certainly assisted this Court in

appreciating prosecution case and contention of applicant-

accused. Therefore, to say that today before this Court

there is no sufcient material to accept, prima-facie,

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authenticity of the test result of the, suspect substance

done on the spot by Field Test Kit.

23 One may argue that reference in the panchanama

of the feld test being conducted at the spot cannot be

overlooked as it is to be presumed in law that feld ofcers

drew the panchanama in discharge of their ofcial acts and,

therefore, a relevant fact, which can be tested only during

the evidence. However, in this case, ofcers were not

precluded from fling the 'test memos' and also could have

taken recourse to Section 36-A(4) of the NDPS Act, and fle

Chemical Analyser's report within extended time.

24 Be that as it may, prosecution has heavily relied

on the judgment of the Hon'ble Apex Court in Tarasingh's

v. The State1 case, to contend that report under Section

173(2) of the Cr.P.C. fled by the police without report of

Chemical Analyser cannot be said to be incomplete report,

1 AIR 1951 SC 441.

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so as to entitle the accused to grant of default bail under

Section 167(2) of the Cr.P.C. on expiry of prescribed period

of 60, 90 or 180 days as the case may be. In the case of

Tarasingh (Supra), as it appears from the facts therein,

police drew up their challan 2nd October, 2019 submitted to

the Court on 3rd, except for the report of the Imperial

Serologist and drawing of sketch map of occurrence. It was

held therein that non-inclusion of such report has in no

manner, change or affect contents of concepts of police

reports. However, in the case at hand, as stated

hereinabove, report of the Chemical Analyser lays the

foundation of the accused's culpability, without which even

Magistrate cannot form an opinion and take cognizance of

the accused involvement in the commission of offence

under the NDPS Act. In my view, prosecution ought to have

as-least placed on record feld test reports of suspect

substance. Thus, to state that bare reference in the

panchanama of test being conducted was not 'sufcient'

that "suspect substance" was amphetamine.

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25 Thus, in consideration of the facts of the case, I

am satisfed that there are reasonable grounds for believing

that the accused is not guilty of the offence registered

against him and in the back-drop of their vocation and in

absence of any criminal antecedents, I have reason to

believe that the applicant is not likely to commit offence

under the Act while on bail.

26 That for the reasons stated, application is

allowed. Applicant is arrested to be released on bail subject

to following conditions:

ORDER

(i) Applicant in Crime No.II-369 of 2019 registered

with Kopar Khairane Police Station, shall be released on

executing PR bond for the sum of Rs.1,00,000/- with one or

more sureties in like sum.

(ii) The applicant shall attend the concerned police

station on 2nd and 4th Monday of each month commencing

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from February, 2021 between 11 a.m. to 1 noon till disposal

of the appeal.

(iii) The applicant shall furnish his permanent and

native residential address and contact number to the

Investigating Ofcer within seven days from the date of his

release on bail.

(iv) He shall deposit his passport, if any, with the

Investigating Ofcer.

(v) The applicant shall not tamper with the evidence

or attempt to infuence or contact the complainant,

witnesses or any person concerned with the case

27 The application is accordingly allowed and

disposed of.

28 It is made clear that observations made here-in-

above be construed as expression of opinion for the

purpose of bail only and the same shall not in any way

infuence the trial in other proceedings.

(SANDEEP K. SHINDE, J.)

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