Navinkumar Pandu Jatot vs The State Of Maharashtra
2022 Latest Caselaw 1048 Bom

                                             02-BA-301-2020-with-3505-2019with-3506-2019.doc




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION

                      BAIL APPLICATION NO. 301 OF 2020

Navinkumar Pandu Jatot
Aged : 24 Years Occ : Farmer,
R/o Durajpalli Ramkottanda
Dist. Nalgunda, Telangana
(At present in Judicial Custody at Yerwada
Jail)                                                             ...Applicant

             Versus

State of Maharashtra                                              ...Respondent

                                WITH
                   BAIL APPLICATION NO. 3505 OF 2019

Umesh Laxman Gaikwad
(An adult, Indian National)
Aged : 29 Years Occ : Business,
R/o Piti, Tal Patoda,
Dist. Beed
(At present in Pune Jail)                                         ...Applicant

             Versus

State of Maharashtra                                              ...Respondent

                                WITH
                   BAIL APPLICATION NO. 3506 OF 2019

Anil Raju Gaikwad
(An adult, Indian National)
Aged : 24 Years Occ : Business,
R/o Takar Colony, Tandulwadi
Tal : Baramati, Dist. Pune
(At present in Pune Jail)                                         ...Applicant

             Versus

State of Maharashtra                                              ...Respondent



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                                       ....
Mr. Aniket Nikam i/by Mr. Vivek N. Arote, Advocate for the
Applicant in Bail Application No.301 of 2020.
Mr. Vishal Rankhambe with Mr. J. K. Agarwal, Advocate for the
Applicants in Bail Application Nos. 3505 of 2019 and 3506 of
2019.
Mr. R. M. Pethe, APP for the Respondent - State.
Ms. Shendge (WAPI) and Mr. Khandekar (PC), Baramati Taluka
Police Station, Pune Rural, Present.
                                       ....

                         CORAM              :         PRAKASH D. NAIK, J.
            ORDER RESERVED ON               :         9th SEPTEMBER, 2021.
            ORDER PRONOUNCED ON             :         31st JANUARY, 2022.


ORDER :

1 The applicants in all these applications are seeking

bail in connection with C.R. No. 528 of 2019 registered with

Baramati Taluka Police Station, Pune on 19th June, 2019 for

offences punishable under Sections 20(b) and 22 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short "NDPS Act").

2 The case of the prosecution is as follows :-

The First Information Report (for short "FIR") is

lodged by Sachin Babanrao Patre, Police Sub Inspector,

attached to Baramati Taluka Police Station, Pune Rural. On

19th June, 2019 at about 1.45 a.m. the complainant and others

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were discharging their duty of Nakabandi at Bhigwan Road Toll

Naka. At that time they noticed Maruti Suzuki Ertiga Car

proceeding from Baramati to Bhigwan. 5 persons were sitting

in the car. They were stopped. The inmates of the car disclosed

their names as Naveenkumar Pandu Jatu, Kishan Naik, Rakesh

Lawati, Umesh Gaikwad and Anil Gaikwad. On suspecting their

movements, search of car was conducted. Below the rear seat

of the car 20 boxes were found lying. On opening the said boxes

it was noticed that boxes were containing green leaves, sticks,

seeds bearing strong smell. The police party felt that it was

Ganja and hence inquiry was made with persons sitting in the

car. They gave evasive answers and did not disclose any

information. It was decided to initiate action under the NDPS

Act. Information was given to Sub Divisional Police Officer and

obtaining written permission from him. The panch witnesses,

photographer were summoned at the place of incident.

Personal search of the persons in the car was conducted.

Inquiry was made with the said persons. They were informed

about purpose of search. They were also appraised about the

fact that search can be conducted in the presence of any other

Gazetted Officer or Magistrate which was declined by them. 20

boxes found in the car were containing the leaves, sticks, seeds

having strong smell and it was confirmed that the contents of

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the boxes were Ganja. The contraband was seized. The weight

of the contraband was 42.642 Kgm. Net weight of Ganja 41.100

Kgm. and the value was Rs.5,82,200/-. The samples were

obtained and the contraband was seized and sealed. The

accused were arrested on 19th June, 2019. They were

remanded to custody.

3 The applicants preferred applications for bail under

Section 167(2) of Cr.P.C. on 5th December, 2019, on the ground

that charge-sheet is filed without C.A. report. It is incomplete

charge-sheet and the appellants are entitled to be released on

bail under Section 167(2) of Cr.P.C. The applications were

rejected by order dated 05th December, 2019.

4 The common grounds urged by the applicants in all

these applications are as follows :-

(a) The applicants are entitled for bail under Section

167(2) of Cr.P.C. r/w Section 36-A(4) of the NDPS Act.

(b) The Investigating Officer has filed the charge-sheet

before the trial Court without the report of Chemical

Analyzer (for short "CA"). The accused are charged for

offences under the NDPS Act. The CA report determines

whether the contraband is Narcotic Drugs or Psychotropic

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Drugs. Charge-sheet filed sans CA report is incomplete

charge-sheet.

(c) Field test was not conducted in the present case to

determine prima facie that the contraband seized from the

accused was covered under the provisions of NDPS Act.

(d) The Investigating agency filed charge-sheet without

C.A. report. Since the C.A. report was not available, it was

open for investigation agency to seek extension of time to

complete investigation on expiry of period of 180 ays in

accordance with Section 36 A (4) of N.D.P.S. Act.

(e) The Special Court under the NDPS Act has wrongly

rejected the application for bail by ignoring the statutory

right of the accused under the aforesaid provisions.

5 Learned Advocate Mr. Nikam submitted that field

test was not conducted in the present case. While filing charge-

sheet there was no cogent material on record to determine that

the contraband seized is covered under the provisions of NDPS

Act. The investigating agency cannot file charge-sheet on the

basis of inferences. The CA report was not filed along with

charge-sheet, thus, in complete charge-sheet was filed against

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the accused. The applicants were entitled for default bail. He

relied on the order dated 23rd March, 2017, passed by this Court

in the case of Manik Sahebrao Chowgule Vs. State of

Maharashtra, passed in Bail Application No.241 of 2017 (Coram

Mrs.Mridula Bhatkar, J.). The ground that charge-sheet was

filed without C.A.report. It is submitted that this Court relied

upon two decisions of this Court in the case of Sunil Vasantrao

Phulbande V/s. State of Maharashtra 2002 (3) Mh.L.J. 689 and

Ranjeet Manohar Machrekar V/s. State of Maharashtra passed

in Criminal Bail Application No. 509 of 2014. In those cases bail

was granted to the accused on the ground that charge - sheet

was filed without C.A. report. There was no report of field

testing kit. Hence, the accused was entitled for bail in

accordance with Section 167(2) of Cr.P.C. The case of Rafael

Palafox Garcia Vs. Union of India and Anr.1 was distinguished

on the ground that there was already report of field testing kit.

It is further submitted that this Court in the case of Sagar

Parshuram Joshi Vs. State of Maharashtra vide order dated

15th January, 2021, passed in Bail Application Stamp No.4761

of 2020 (Coram : S.K. Shinde, J.) was pleased to grant bail on

the ground that the report of field test was not part of charge-

sheet, although test was conducted on the field drug kit and

1 2009 Cr.L.J.446

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resultant colour pattern confirmed and matched suspect

substance i.e. amphetamine recovered from the accused. He

submitted that in the case of Aleksander Kurganov Vs. State

and Another2, this Court vide order dated 5 th February, 2021,

rejected similar submission by relying upon decision of

Supreme Court in the case of Dinesh Dalmla Vs. CBI 3. The Court

has not considered the decision in the case of Manik Chowgule

(Supra) and Sagar Joshi (Supra). Thereafter in the case of

Manas Krishna T.K. Vs. State4, this Court (Coram : M.S.

Jawalkar, J.) vide order dated 7th July, 2021, noted decisions in

the case of Sagar Joshi and Aleksander Kurganov and referred

the issue to the larger bench. It is submitted that, the decision

in the case of Dinesh Dalmia was not relating to offences under

the NDPS wherein C.A. report is vital document. In the case of

Aleksander Kurganov V/s. State of Maharashtra, field test was

conducted.

6 The submissions of learned Advocate Mr. Vishal

Rankhambe appearing in Bail Application Nos. 3505 of 2019

and 3506 of 2019 are similar.

7                  Learned APP Mr. Pethe submitted that the samples

2 2021 SCC Online Bom 150
3 AIR 2008 SC 78
4 2021 SCC Online Bom 1015


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were forwarded to the forensic expert seeking opinion on 2 nd

August, 2019. Reminder was sent to the Chemical Analyzer on

9th January, 2020. The report was ready on 28th August, 2019.

It was received by police Inspector Baramati police station vide

letter dated 17th January,2020, the police inspector Baramati

Police station forwarded the report to trial Court. It is taken on

record on 30th January, 2020. The CA report was received on

17th January, 2020. It has been produced before the trial Court

and forms the part of the said proceedings. He further

submitted that, even if the charge-sheet was filed without CA

report, the present case can be distinguished on the basis of the

fact that the accused were found in possession of Ganja. It was

possible for the investigating officer to determine nature of

contraband on the basis of smell and its features. Mr. Pethe

drew my attention to the observations made by this Court in

the case of Sagar Joshi (supra) wherein reference was made to

the handbook and the Chapter VII of the said handbook which

relates 'Drug identification and Field Testing'. It was observed

that the chapter I enumerates, check list for Drugs Law

Enforcement Officers, while executing the field operation, to

ensure that Drug Law Enforcement Officer does not overlook

anything, which might subsequently affect the case. Reference

was made to item no.10 in the check list, wherein it is

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mentioned that where all recovered suspect substance field

tested with drug detection kits precursor testing kits and

matching colour results to show presence of Narcotics Drugs or

Psychotropic Substance or Control Substance and was it all

documented? The chapter relating to identification of drug

states that natural narcotic drugs like Ganja, Charas, Opium

Poppy can be easily identified by their colour, texture and

smell. Mr. Pethe submitted that Ganja is such substance which

can be identified easily by the investigating agency and there

was reason to believe that the contraband found in possession

of the applicants herein was covered under the provisions of

NDPS Act. Mr. Pethe further submitted that even otherwise the

ground for bail under Section 167(2) of Cr.P.C. were not

available to the applicants. The charge-sheet without CA report

cannot be termed as incomplete charge-sheet. He relied upon

the decisions of this this Court in the case of Aleksander

Kurganov Vs. State and Another (supra) and decision in the

case of Dinesh Dalmiya V/s. C.B.I. (Supra). It is submitted that,

in the light of the observations made in the case of Dinesh

Dalmiya (supra) the charge-sheet sans CA report cannot be

said to be incomplete charge-sheet. Mr. Pethe has also relied

upon the decision of the Kerala High Court dated 8 th

September, 2021 delivered in the case of Sameer V/s. State of

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Kerla. He submitted that, in the said decision it was held that

the investigating officer has already initiated proceedings to get

analyst report by submitting appropriate requisition before the

Court and simply because the analyst report is not received

from the laboratory the investigation cannot be held

incomplete. The application for bail in the present case was

filed before completing of 180 days and it was rejected by

Special Court.

8 Mr. Nikam in rejoinder submitted that the

proceedings under the NDPS Act are required to be

distinguished since the conviction of the accused would be

based on the fact that he was involved in possession,

transportation etc., of Narcotic Drugs or psychotropic

substance. The CA report is a determinating factor. Although

application for bail under Section 167 (2) was preferred on 5 th

December, 2019, the investigating agency had not filed CA

report within 180 days, nor there was extension sought for

completion of investigation. The right had accrued in favour of

applicants and the present applications were filed and pending

before this Court when such right to default bail had accrued in

favour of applicants.

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9 After concluding the submissions of both sides and

the order was reserved, Mr.Nikam has mentioned that

reference made by this Court in the case of Manas Krishna T.K.

(supra) was answered by the Division Bench of this Court and

placed for consideration the decision of the Division Bench of

this Court (Goa Bench) dated 17th September, 2021. However,

he mentioned that the facts of the case under reference,

indicate that field test was conducted but C.A. report was not

filed along with charge-sheet. It was filed beyond 180 days.

10 The applicants were arrested on 19th June, 2019.

Charge-sheet was filed on 11th August, 2019. The letter to CA

seeking opinion about the samples was forwarded on 2 nd

August, 2019. The CA Report dated 28th August, 2019, was

received ad it is part of proceedings. The documents submitted

by learned APP indicate that report dated 17th January, 2020,

was submitted to trial Court on 30th January, 2020, requesting

that the C.A. report dated 28th August, 2019, is received.

Charge-sheet is already filed against accused and the report be

included in the proceedings. The learned APP from trial Court

has acknowledged it with signature on 30th January, 2020.

There is another report dated 8th February, 2021, by police

inspector Baramati Taluka police station submitted to trial

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Court for including C.A. report in case papers. The said report

is marked as Exhibit-22, and it bears order dated 8 th February,

2021 as, "Allowed".

11 The FIR dated 19th June, 2019 indicate that search

of boxes resulted in green leaves, seeds having strong smell

determined by the raiding party as Ganja. Panchanama of

seizure was recorded on 19th June, 2019. The panchanama

indicate that the Investigating Officers' were of the opinion that

the contraband was Ganja. Statement of Police Head Constable

Jayant Takawane dated 19th June, 2019 mention that on

opening the boxes, the officers noticed green leaves, sticks and

seeds having strong smell and it was revealed that boxes were

containing Ganja. Statements of Police Head Constable

Rajendra Jadhav, Police Constable-Ranjeet Mulik, Police Naik-

Sandip Jahdav, Police Head Constable-Surendra Wagh, Police

Naik - Swapnil Ahiwale, Police Constable-Sharma Pawar, Police

Constable-Vishwal Jawale are similar. All the statements forms

part of charge-sheet which has been filed before the Court.

12 It is undisputed that the charge-sheet was not

accompanying the CA report. Charge-sheet was filed before 180

days. C.A. report was submitted to trial Court beyond 180 days.

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Specimen was sent to C.A. for analysis on 2nd August, 2019. The

report states that what was recovered from the accused is

Ganja.

13 It is urged in these applications that the charge-

sheet filed without CA report is incomplete charge-sheet. The

field test was not conducted. Hence, the applicants/accused

were entitled for bail under Section 167(2) of Cr.P.C. r/w

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

14 The decision in the case of Sunil Phulbande and Anr.

(Supra) was decided on 13th February, 2002. It was held that

charge - sheet for offences under N.D.P.S. Act against the

applicants therein without chemical analysers report is

incomplete. Such incomplete charge-sheet cannot be said to be

charge-sheet contemplated under Section 173(5) so as to

enable the Magistrate to take cognizance of the offence. The

applicants were entitled to be released on bail for non

compliance of provisions of Section 167(2) of Cr.P.C. This Court

relied on decision of Andhra Pradesh High Court in

Matchumari China Venkatreddy and Others Vs. State of

Andhra Pradesh5, and judgment of this Court in the case of

Sharadchandra Vinayak Dongre and Ors. Vs. State of

5 1994 Cr.L.J.257

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Maharashtra6.

15 In the case of Manik Sahebrao Chowgule (Supra),

this Court has held that charge-sheet without C.A. report is

incomplete and accused is entitled for bail. The facts of that

case were that the recovered contraband was Ganja. Field test

was not conducted and C.A. report was not filed with charge-

sheet. Bail was granted under Section 167(2) of Cr.P.C. The

reliance was placed on decision in the case of Sunil Phulbande

(Supra), and Ranjeet Manohar Machrekar Vs. State of

Maharashtra (Criminal Bail Application No.509 of 2014). This

Court distinguished decision of this Court in the case of Rafael

Palafox Garcia Vs. Union of India and Another 7, on the ground

that in that case samples were tested on the spot by field

testing kit and the report was positive for controlled substance

under N.D.P.S. Act.

16 In another order passed by this Court in the case of

Sagar Joshi (Supra) dated 15th January, 2021, reference was

made to the handbook about 'Drug identification and Field

Testing'. In that case test was conducted by field drug kit and

the resultant colour pattern confirmed and matched with

6 1991(1) Mh.L.J.656.

7 2009 Cr.L.J. 446


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amphetamine recovered from the accused. However, the

documents relating to the field test reports of suspect

substances were not part of charge-sheet. Bare reference in the

panchanama of test being conducted was not sufficient to show

that suspect substance was amphetamine. It was observed that

the report of Chemical Analyzer lays the foundation of the

culpability of accused without which even Magistrate cannot

form an opinion and take cognizance, involvement of the

accused in commission of offence under the NDPS Act. Bail was

granted in accordance with Section 167(2) of Cr.P.C. reliance

was placed on the decision in the case of Sunil Phulbande

(Supra). Reference was made to field officers hand book issued

by NCB for guidance of Drugs Law Enforcement officers and

observed that, instructions in hand book suggest, preparation

of test memo on the spot and facsimile in print seal used in

sealing the envelopes to be affixed on test memos. The test

memos were not filed on record and the officers did not take

recourse to Section 36 A(4) of NDPS Act to file chemical

analysers report within extended time.

17 In Balaji Vasantrao Suwarnkar Vs. State of

Maharashtra8, this Court held that Section 167 of the Code of

8 1992 Mh.L.J.159

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Criminal Procedure contains a necessary safeguard against

prolonged detention of the person accused of cognizable

offences and puts a limitation on such detention during

investigation. Investigation has been defined by Section 2(h) of

the Code to include all the proceedings under the Code for the

collection of evidence conducted by a police officer or by any

person (other than a Magistrate) who is authorised by a

Magistrate in this behalf. Investigation comes to an end as soon

as a report under Section 173 is filed. This report may either be

in the form of what is popularly known as charge-sheet or a

final report under Section 169. Essentials of a valid report

under Sub-section (2) of Section 173 have been listed in the

said Sub-section. Even if any document is not filed alongwith

the charge-sheet, prosecution if able to show good reason, is not

precluded from submitting that document at a later stage and if

sufficient opportunity is given to accused, the doucment can

well be accepted. Merely because the chemcial analysers report

was not there, it was totally improper on the part of the Court

to refuse to accept the charge-sheet. If all this information as is

required by Section 173(2) is given in the charge-sheet, it is a

proper report about completion of the enquiry and as soon as it

is filed in the Court, requirement as per Section 167 is fulfilled

by the prosecution. Section 167 of the Code of Criminal

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Procedure does not lay down that the Magistrate shall take

cognizance of the offence within 90 days or 60 days, as the case

may be, and if no cognizance is so taken within that period,

then accused shall be entitled for release on bail. Limitation is

provided for completion of investigation and not for taking

cognizance by the Court consequently, the provisions of Section

167(2) proviso were not attracted.

18 In Rohini Mahavir Godse Vs. State of Maharashtra

and Others9, the Division Bench of this Court held that, once the

Magistrate received police report of facts which constitute a

cognizable offence, the Magistrate is under an obligation to take

the cognizance under Section 190(1)(b) of Cr.P.C., and, he has

no discretion to refuse to take cognizance of such a case. Once

the charge-sheet complies with the requirement of Section

173(2) and cognizable offence is disclosed, the Magistrate is

duty bound to accept the charge-sheet. Sub-section(5) of

Section 173 merely enjoins upon the police officer to forward to

the Magistrate along with the report (a) all documents or

relevant extracts thereof on which the prosecution proposes to

rely other than those already sent to the Magistrate during the

course of investigation and (b) the statements recorded under

9 1996(2) Mh.L.J.492

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Section 161 of all persons whom the prosecution proposes to

examine as its witnesses. However, the provisions of this Sub-

section do not make report under Sub-section (2) incomplete or

unacceptable if certain documents on which the provisions of

Sub-section (8) of Section 173 contemplates further report or

reports under Sub-section (2) to be filed even after filing of the

first report under the provisions of Section 173(2) and such

further report or reports shall be dealt in accordance with the

provisions of Section 173(8) of Cr.P.C. where the police had filed

a valid charge-sheet within the period of 90 days from the date

of arrest of the accused an it was illegally rejected by the

Magistrate, the accused cannot get advantage of Section 167(2)

of Cr.P.C.

19 In the case of Rafael Palafox Garcia Vs. Union of

India10, the contention of applicant was that, at the time of filing

of charge-sheet, the C.A. report was not filed. Thus, incomplete

charge-sheet was filed. There was no material before Court to

come to the conclusion that the substance seized was pseudo-

ephedrine, and, hence, could not have taken cognizance of the

case. Though the charge-sheet is filed within 60 days, the same

was incomplete as it was not accompanied with documents

10 2008 All MR (Cri) 3031

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contemplated under Sub-section (5) of Section 173 of Cr.P.C.,

and, cannot be treated as charge-sheet/report which would

empower the Court to take cognizance of the offences, and,

hence, applicant is entitled to be released on bail in view of

Section 167(2) of the ode. Reliance was placed on decision in

the case of Sunil Phulbande (Supra). It was observed that the

complaint and panchanama, specifically mention about field

testing kit being taken to the spot and samples were tested and

result was positive. It is held that the charge-sheet is an

intimation to the Magistrate that upon investigation into a

cognizable case, the investigating officer has been able to

procure sufficient evidence for the Court to enquire into the

offence and the necessary information is being sent to the

Court. A charge-sheet is a final report within the meaning of

Sub-section (2) of Section 173 of Code. It is filed as to enable

Court concerned to apply mind as to whether cognizance of the

offence thereupon should be taken or not. The report is

ordinarily filed in the form prescribed thereof. One of the

requirement for submission of police report is whether any

offence appears to have been committed and by whom. Even

though the report of C.A. was not filed, it cannot be said that an

incomplete charge-sheet has been filed and Court could not

have taken cognizance. Accused was not entitled for bail under

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

20 The High Court of Kerala at Ernakulam in the case

of Sameer Vs. State of Kerala dealt wih similar issue. The final

report was submitted by investigating officer in a case

registered under N.D.P.S. Act, without analyst report. Hence,

the accued had contended that it is an incomplete final report.

The statutory period of 180 days is over. Incomplete final

report is filed to defeat the right of accused to get bail under

Section 167(2) of Cr.P.C. The accused is entitled for bail under

Section 167(2) of Cr.P.C. The Court took a view that, as per

Section 2(h) investigation includes all the proceedings under

Cr.P.C., for collection of evidence conducted by a police officer or

by any person (other than Magistrate), who is authorised by a

Magistrate in this behalf. Therefore, the investigation includes

all the proceedings under the Code for collection of evidence.

The investigating officer has already taken proceedings to get

the analyst report by submitting requisition before the Court

concerned and it is already reached the laboratory. Therefore,

it cannot be said that simply because the analyst report is not

received from the laboratory, the investigation is not complete.

If the investigating officer is mainly relying on lab report to

prove his case, and, final report is filed without report, it cannot

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be said that it is a final report. If the investigating officer after

investigation concluded that offence against the accused is

maintainable on documents submitted before the Court, it can

be treated as a complete report under Section 173 of Cr.P.C. In

such situation, the investigating officer can submit report

before the Court that the analyst report is not received and that

is supplementary evidence or corroborative evidence to move

the charge-sheet. In such circumstances, it cannot be said that

the final report submitted is defective. In case, where the

prosecution cannot prove a case without aid of the analyst

report, and if final report is filed without analyst report, it can

only be treated as incomplete final report. Therefore,

entitlement of default bail under Section 167 of Cr.P.C. is to be

decided on the facts of each case.

21 In the case of Dinesh Dalmia Vs. CBI (Supra) , it was

observed that charge-sheet is a final report within the meaning

of Sub-section (2) of Section 173 of the Code. It is filed so as to

enable the Court concerned to apply its mind as to whether

cognizance of the offence thereupon should be taken or not. The

report is ordinarily filed in the form prescribed therefor. One of

the requirement for submission of a police report is whether

any offence appears to have been committed and if so, by

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whom. In some cases, the accused having not been arrested, the

investigation against him may not be complete. There may not

be sufficient material for arriving at a decision that, the

absconding accused is also a person by whom the offence

appears to have been committed. If the investigating officer

finds sufficient evidence even against such an accused who had

been absconding, law does not require that filing of charge-

sheet must wait the arrest of accused. The power of

investigating officer to make prayer for further investigation in

terms of Section 173(8) is not taken away only because charge-

sheet has been filed. Further, investigation is permissible even

if order of cognizance of offence has been taken by the

Magistrate. It is further observed that ordinarily all documents

accompany the charge-sheet. But, in that case, some documents

could not be filed which were not in the possession of CBI and

the same were with GEQD. (Government Examiner of

Questioned Documents).

22 In Tara Singh Vs. State11, the report of imperial

serologist and drawing of the sketch map of the occurrence was

produced by filing second challan, beyond the period prescribed

under Section 167(2) of Cr.P.C. The accused claimed bail under

11 AIR 1951 SC 441

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Section 167(2) of Cr.P.C. on the ground that the first challan

was incomplete. The submission was rejected by Court. It was

held that first challan was complete, even though the report of

imperial serologist or the drawing of the sketch map of the

occurrence did not accompany the same. Section 173(1)(a)

requires that as soon as the police investigation under Chapter

XIV is complete, there should be a report forwarded to the

Magistrate in the prescribed form setting forth names of

parties, nature of information and names of persons who

appear to be acquainted with circumstances of the case. Thus, it

was complete report. In the case of Suresh Kumar Bhikam Jain

(supra), decided by Hon'ble Supreme Court, a charge sheet

containing the details specified in Section 173(2) had been filed

within the time prescribed under Section 167(2). However, no

copy of the sanction order was produced along with such a

charge sheet. The accused contended that in the absence of a

sanction order, the Magistrate had no authority to take

cognizance of the offense or to pass any further remand orders

under Section 309 and therefore the accused was entitled to

default bail under Section 167(2). This contention was however

negatived holding that a police report or a charge sheet

containing details specified in Section 173(2) had been filed

within the period stipulated under Section 167(2) and the issue

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of cognizance was to be addressed later. The police report was

complete even though the sanction order was not

accompanying it, and therefore, the accused was not entitled to

default bail. In this case the Hon'ble Supreme Court considered

its several earlier rulings and held that none of such rulings

detract from the position that once a charge sheet is filed within

the stipulated time, the question of grant of default bail does

not arise. The filing of a charge sheet is sufficient compliance

with the provisions of Section 167(2)(a)(ii) and whether

cognizance is taken or not, is not material as far as Section 167

Cr.P.C. is concerned.

23 In the case of Central Bureau of

Investigation Vs. R.S.Pai and another reported in AIR 2002

SUPREME COURT 1644, it was observed that "it cannot be held

that the additional documents cannot be produced

subsequently. If some mistake is committed in not producing

the relevant documents at the time of submitting the report or

charge-sheet, it is always open to the Investigating Officer to

produce the same with the permission of the Court." It was

further observed that "the word 'shall' used in sub-section (5)

cannot be interpreted as mandatory, but as directory. Normally,

the documents gathered during the investigation upon which

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the prosecution wants to rely are required to be forwarded to

the Magistrate, but if there is some omission, it would not mean

that the remaining documents cannot be produced

subsequently. Further, the scheme of sub-section (8) of Section

173 also makes it absolutely clear that even after the charge-

sheet is submitted, further investigation, if called for, is not

precluded. If further investigation is not precluded then there

is no question of not permitting the prosecution to produce

additional documents which were gathered prior to or

subsequent to investigation. In such cases, there cannot be

any prejudice to the accused."

24 A Full Bench of the Punjab and Haryana

Court in the case of State of Haryana Vs. Mehal Singh and

another reported in 1978 CRI.L.J.1810 has held that when a

charge-sheet is submitted without the reports of experts well

within the period of 60/90 days from the date of arrest, merely

because the report of the expert was not filed along with it, the

accused is not entitled to be released on bail under Section

167(2) of Cr.P.C. In the said case it was observed that :

" The investigation of an offence cannot be considered to be inconclusive merely for the reason that the investigating officer, when he submitted his report in terms of sub-sec. (2) of S.173 to the Magistrate, still

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awaited the reports of the experts or by some chance, either inadvertently or by design, he failed to append to the police report such documents or the statements under S.161 of the Code, although these were available with him when he submitted the police report to the Magistrate. Therefore, when a charge- sheet is submitted without the reports of experts well within the period of 60 days from the date of arrest, the accused is not entitled to be released on bail under Section 167(2).

... Since a report to qualify itself to be a 'police report' is required to contain only such facts as are mentioned in sub-section (2) of S.173, so if once it is found those that the police report contained all facts, then so far as the investigation is concerned the same has to be considered to have been completed. It is not incumbent on the investigating officer to reduce in writing the statements of the witnesses; he may merely include their names in the list of witnesses in support of the prosecution case when submitting the charge-sheet. Surely, if the charge-

sheet thus submitted would be complete as enabling the Magistrate to take cognizance of the offence, there is no rational basis for holding that similar charge-sheet would not be a police report of the requisite kind if the statements of the witnesses although had been recorded under S.161 (3), but either by design or by inadvertence are not appended with the report and that the investigation of the case for that reason alone would be considered to be incomplete thus entitling the accused to claim release on bail in view of the proviso to sub-sec. (2) of Section 167 of the Code if his detention had exceeded investigation sixty days. So far the investigation part of the job of the investigating officer is concerned, it is complete the moment he had collected all evidence and facts that are detailed in sub-sec.(2) of S.173 and from the evidence thus collected he is satisfied that the case deserves to be initiated against the accused. And further even if the investigating officer had not received the report of

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the expert, so far as his job of collecting of the evidence is concerned, that is over the moment he despatches the material for the opinion of the expert and incidentally cites him as a witness if he relies on his testimony."

25 In the case of Kisan Lal Vs. State12, decided by The

Delhi High Court, the question raised by accused was that

investigation into the offences under the N.D.PS. Act cannot be

held to be complete without obtaining the opinion of the expert

and therefore the cognizance of offences under Section 190(1)

(b) of Cr.P.C. is not permissible. The admitted fact is that

opinion of the C.F.S.L. by then had not been received by the

investigating officer. The reports were subsequently received

and filed before the concerned Courts. Those reports show that,

samples from seized commodity were falling within the ambit of

the N.D.P.S. Act. One of the accused preferred bail application

under Section 167(2) of Cr.P.C. The accused Kisan Lal filed

habeas corpus petition on the plea that his detention in judicial

custody after 90 days of arrest was without the authority of

law. The learned single Judge referred the matter to Division

Bench. The Court had observed that, it is unnecessary to notice

other judgments since the Supreme Court decision in Tara

Singh;s case (Supra), holds that, a police report which is not

accompanied by the experts opinion is to be held to be complete

12 39 (1989) DLT 392

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report as long as the witnesses who are acquainted with the

circumstances of the case have been examined, continues to be

a law inspite of amendments in Section 173 of the Code. The

arguments that for offences under N.D.P.S. Act, the report

under Section 173(2) of the Code, which in law is complete, is to

be considered incomplete in the absence of the opinion of the

expert, is entirely misconceived. Apparently, the power of the

Magistrate to take cognizance of offences upon a police report

is being related to the duty of the S.H.O. to forward a report on

completion of investigation. The duty of the investigating officer

under the Code is to complete the investigation without

unnecessary delay. On its completion, which necessarily means

that the witnesses acquainted with the circumstances of the

case have been examined, the officer in charge of the police

station has to forward a police report in a prescribed form to a

Magistrate empowered to take cognizance of the offence. As far

as the experts report is concerned, by virtue of Sub-section (4)

of Section 293 of the code, any document purporting to be a

report under the hand of Director or a Deputy Director of a

C.F.SL. or S.F.S.L. can be used as evidence in any enquiry, trial

or other proceedings under the Code. It is open to the Court

where it thinks fit to summon and examine the scientific

expert. Under Section 173 of the code, there is no mandate that

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a police reports must enclose the document purporting to be a

report under the hand of a Government scientific expert. The

cognizance of the offences taken by the Magistrate was proper

and valid. Accused is not entitled for bail under Section 167(2)

of Cr.P.C.

26 In the case of Mehabub Rehman @ Empha Vs. State

(Special Cell, Delhi Police), the Delhi High Court considered

similar issue. The Court relied on decision in the case of Kisan

Lal (Supra) and held that, though F.S.L. report has been filed

after filing of bail application and after completion of 180 days

of investigation, but, the charge-sheet cannot be held to be

incomplete because of F.S.L. report over voice sample is not in

the hands of investigating officer.

27 In State of Maharashtra v. Sharadchandra Dongre

(supra), the Hon'ble Supreme Court, after adverting to the

requirements of Section 173(2), at para 7 held as follows:

" The purpose of the submission of the police report with the details as mentioned above is to enable the Magistrate to satisfy himself, whether on the basis of the report and the material filed along with the police report, a case for taking cognizance has been made out or not. After applying his mind to the police

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report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. Section 190(1)(b) Cr.PC provides that a Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offense. Therefore, if the police report and the material filed therewith is sufficient to satisfy the Magistrate that he should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted by it under Section 173(2) Cr.PC. Merely, because the prosecution had filed an application, after submission of the charge-sheet, seeking permission to file "supplementary charge- sheet", it could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him along with the charge-sheet that cognizance of the offense was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge-sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate".

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28 In the case of Aleksander Kurganov (supra) this

Court vide decision dated 5th February, 2021 dealt with

questions viz. Does a charge-sheet without FSL report in the

crime under the NDPS Act remain incomplete and attracting

Section 36-A(4) of the Act and findings of the 'field test' suffer

evidently because the test is by the Police and not an

independent agency. Several decisions were placed for

consideration before the Court including the decision in the

case of Sunil Phulbande and Rafael Palafox Garcia (supra). The

Court considered the decision of the full bench of Punjab and

Haryana High Court in the case of State of Haryana Vs. Mehal

Singh and another (Supra). Reference was also made to the

decision in the case of Dinesh Dalmia Vs. C.B.I. (Supra). This

Court observed that the ratio of Dinesh Dalmiya (Supra) has to

be considered as it holds that mere absence of forensic report

does not vitiate the charge-sheet nor it should be treated as

incomplete one.

29 In the case of Manas Krishna T. K. (supra) dealt

with the decision in the case of Sagar Joshi (supra) and

Aleksander Kurganov (Supra). On account of conflicting view,

the learned Single Judge of this Court felt that the matter could

be more advantageously heard by Division Bench so that the

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contentious issue recurringly raised about the scope of filing

charge-sheet without CA report and grant of default bail based

thereon is sorted out one way or other. Para No.23 of the said

order dated 7th July, 2021 reads as follows :-

" 23. Hence, in my considered opinion, given the conflicting decisions on the subject, the following questions arise and can be more advantageously considered by a Division Bench of this Court :

(i) Whether the presentation of a report under Section 173(2) Cr.PC. by the police without the report of Chemical Analyser/FSL amounts to incomplete challan and in the absence of any extension of time under Section 36-A(4) of the NDPS Act, whether the accused is entitled to bail under Section 167(2) Cr.P.C.?

(ii) Whether, in a charge sheet under NDPS Act, accompanied by a field testing report which is a part of the record, can be labeled as an incomplete report, simply because it is not accompanied by a report of Chemical Analyser/ FSL?

(iii) What is the legal efficacy of "Drug Law Enforcement, Field Officers' Handbook" issued by the Narcotics Control Bureau, Ministry of Home Affairs, Government of India."

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30 The reference made by the learned single Judge by

this Court in the aforesaid decision has been answered by order

dated 17th September, 2021 vide Criminal Misc. Application

(Bail) No.88 of 2021. The said order indicate that the main

issue for determination in this reference is whether in a case

under the NDPS Act, the investigation can be said to be

complete within the period prescribed under Section 167(2) of

Cr.P.C. when a police report under Section 173(2) is filed before

the Special Court without any CA/FSL report along. If, based

upon such report the police report, an investigation is held as

incomplete, then, accused will be entitled for the default bail.

However, if the investigation is held as complete, no question of

default bail would arise.

31 While adjudicating the aforesaid reference the

counsel for accused had relied upon the decisions such as (i)

Sunil Vasantrao Phulbande v. State of Maharashtra, 2002 (3)

Maharashtra Law Journal 689, (ii) Punjaram v. State of

Maharashtra 2005 Criminal Law Journal 4658, (iii) Ranjeet

Manohar Machrekar v. The State of Maharashtra, Criminal Bail

Application No.509/2014 (Bombay), (iv) Manik Sahebrao

Chaugule v. State of Maharashtra, Criminal Bail Application

No.241/2017 (Bombay), (v) Seema Raju Panchariya v. The

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State of Maharashtra, Criminal Bail Application No.65/2018

(Aurangabad), (vi) Sagar Parshuram Joshi v. The State of

Maharashtra, Bail Application (ST) No. 4761/2020 (Bombay).

32 Whereas the prosecution had relied upon the

decision such as (i) Balaji Vasantrao Suwarnkar v. State of

Maharashtra, (1992) Maharashtra Law Journal 159, (ii) State

of Maharashtra v. Sharadchandra Vinayak Dongre, (1995) 1

SCC 42, (iii) Babu s/o Rakhmanji Khamkar & Anr. v. The State

of Maharashtra, (1995) 4 Bombay Cases Reporter 335, (iv)

Rohini Mahavir Godse v. State of Maharashtra 1996 (2)

Maharashtra Law Journal 492, (v) Rafael Palafox Garcia v.

Union of India & Anr. 2008 All M.R. (Cri) 3031, (vi) Sheikh

Shabbir s/o Mohd Shafi v. State of Maharashtra, Criminal

Application no.143/2011 (Nagpur Bench), (vii) Srihari Mahadu

Valse v. The State of Maharashtra, Criminal Bail

Application No.3284/2018.

33 The submissions of advocate representing accused

before the reference Court can be summarised as under:

(i) The decisions relied upon by advocate for accused

reflected the correct position of law;

(ii) The right to default bail in terms of Section 167(2)

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is indefeasible. This right flows from Article 21 of

the Constitution of India;

(iii) Section 167 of Cr.P.C. does not refer to the filing of a

police report under Section 173, but, only provides

that an accused will be entitled to a default bail

when an investigation is not completed within

period prescribed under Section 167(2) of Cr.P.C.;

(iv) Cases under N.D.P.S. Act have to be treated

differently from cases under I.P.C. or other

enactments where C.A./F.S.L. report may not

always form the fulcrum of the prosecution case;

(v) Unless there is evidence that, the substance

recovered from the accused is a Narcotic Drug or a

Psychotropic Substance, no prosecution could even

lie under N.D.P.S. Act;

(vi) Investigation can never be said to be completed in

the absence of any C.A./F.S.L. report. On such

incomplete charge-sheet, the right of accused for

default bail cannot be frustrated or denied;

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(vii) Under Section 173(2)(d), the police report is

required to state whether any offence appears to

have been committed and if so, by whom;

(viii) In N.D.P.S. case, police officer cannot form an

opinion whether an offence appears to have been

committed and if so by whom in the absence of the

foundational fact i.e. whether the material is

narcotic drug or psychotropic substance;

(xi) Field testing report is most unreliable and in

absence of C.A./F.S.L. report, the investigation

cannot be said to have been completed;

(x) Section 293 of Cr.P.C. accords special status to C.A./

F.S.L. report in N.D.P.S. matters. Mere filing of

report under Section 173(2) is not determinative of

of completion of investigation;

(xi) Reliance is placed on decision in the case of Satya

Narayan Musadi and Others Vs. State of Hydrabad13,

Ranjeet Manohar Machrekar Vs. State of

Maharashtra (Supra);

13 (1993) SCC Online AP 260


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(xii) Drug Law Enforcement Field Offers Handbook

issued by Narcotic Control Bureau has statutory

force. It has been issued by an expert agency in

terms of Section 4(2) of the N.D.P.S. Act. It is

binding on investigating agency under Article 256

of the Constitution of India. Reliance is placed on

decision in the case of Swaraj Abhiyan Vs. Union of

India14; Katya Cooperative Building Society Ltd. Vs.

Government of Andhra Pradesh15, and, Dr.D.Y. Patil

Educational Academy and Anr. Vs. Director of

Technical Education and Ors.16;

(xiii) Even if documents and statements as contemplated

by 173(5) may not be integral part of the police

report under Section 173(2), still the production of

such documents and statements is mandatory

because of use of expression "shall", in Section

173(5), and, therefore, the requirement prescribed

by Section 173(5) is mandatory, and, not merely

directory;

14 (2018) 12 SCC 170
15 198(2) (H.C.) A.P. Law Journal 158
16 (2009) 1 Mah. L.J.192


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(xiv) The decision in the case of Narendra Kumar Amin

Vs. C.B.I.17, holding that provisions of Section

173(5) are directory is per incuriam since it

conflicts with the ratio in the case of K. Veeraswami;

34 The submissions by prosecution side were as

follows:

(a) Police report under Section 173(2) of Cr.P.C. is only an

opinion of the investigating officer that in so far as he is

concerned, the investigation is complete in all respects;

(b) Requirement of forwarding documents and statements in

terms of Section 173(5) is only directory and therefore

even if no C.A./F.S.L. report is forwarded to the Special

Court along with the police report, neither the police

report nor the investigation be said to be incomplete;

(c) The limitations prescribed under Section 167(2) of

Cr.P.C. 36 A(4) of the N.D.P.S. Act, is only for filing the

charge-sheet, and, not for taking cognizance of the

offence;

17 2015 3 SCC 417


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(d) Once a charge-sheet complying with the provisions of

Section 173(2) of Cr.P.C. is filed within the period

prescribed, no question of any default bail arises;

(e) Decision in the case of Phulbande (Supra) and the

decision that follows it are per incuriam and even

contrary to the law laid down by the Supreme Court;

(f) Prosecution relied on decision in Narendra Kumar Amin

Vs. CBI18; Jagdish Purohit Vs. State of Maharashtra 19;

Suresh Kumar Bhikam Jain Vs. State of Maharashtra 20;

C.B.I. Vs. R.S. Pai21; Narayan Rao Vs. State of A.P.22; Tara

Singh Vs. State (Supra); and Dinesh Dalmia Vs. C.B.I.

(Supra)

35 The conclusions of division Bench while answering

the reference are as follows:

(i) On the analysis of the statutory provisions, as also the

decision that have analyzed various shades of such

statutory provisions, Court believe that a police report or

charge-sheet containing the details specified in Section

18 2015(3) SCC 417 19 (1998) 7 SCC 270 20 2013(3) SCC 77 21 2002 (5) SCC 82 22 AIR 1957 SC 737

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173(2), if filed within the period prescribed under Section

167 (2) is not vitiated or incomplete simply because the

same was not accompanied by CA/FSL report and based

thereon, there is no question fo the accused insisting on

default bail;

(ii) Certain binding precedents, directly on the point were not

brought to the notice of the learned single judge who

decided Phulbande (Supra). Rather, overruled and

reversed decisions were cited before the learned single

judge in the said matter. Hence, the decision in

Phulbande (Supra) is per incuriam and does not reflect

the correct position in law on the subject;

(iii) Phulbande (supra) takes the position that the charge-

sheet, though filed within the time limit specified under

Section 167(2), if unaccompanied by a CA/FSL report, is

incomplete and the accused is entitled to default bail.

Phulbande (supra) was relied upon and/or followed in

Punjaram (supra), Sagar Joshi (supra), Manik Chaugule

(supra), Seema Panchariya (supra), and Ranjit

Machrekar (supra). Therefore, if Phulbande (supra) is

found to be per incuriam, the decisions which follow it,

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will not reflect the correct position in law on this subject.

(iv) In Phulbande (Supra), the Court has relied upon the

decision of Andhra Pradesh High Court in Matchumari

Chima Veskata Reddy Vs. State of Andhra Pradesh

(Supra) and decision of this Court in Sharadchandra

Vinayak Dongre Vs. State of Maharashtra 23. The decision

in Matchumari (Supra) case is overruled by Division

Bench of the same Court in Vellined Puram (Supra),

wherein it was observed that the Bench cannot agree

with view. It was held that police report filed under

Section 173(2) is not complete unless the same is

incomplete form complying with all formalities under

Section 173(2) and (5) and the accused shall have

absolute right for being released on bail, cannot be

accepted. The decision in the case of Sharadchandra

Dongre (Supra) has been reversed by the Hon'ble

Supreme Court in the case of State of Maharashtra Vs.

Sharadchandra Dongre24, by observing that the view of

the High Court is erroneous;

23 1991 (1) Mah.L.J. 656
24 1995() SCC 42


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(v) Decision in Phulbande (Supra) is per incuriam and does

not relfect correct position of law. Phulbande was relied

upon in Punjaram (Supra), Sagar Joshi (Supra), Manik

Chwgule (Supra), Seema Pancheriya and Ranjit

Machrekar (Supra). Therefore, if Phulbande is per

incuriam, the decision which follow it, will nto reflect

correction position of law. The decision in the case of

Balaji Suvarnakar (Supra) was not brought to the notice

of Court. Decision of Suvarnakar was approved by

Division Bench in the case of Rohini Godse (Supra), since

Phulbande (Supra) was relied upon by Pajaram (Supra),

Sagar Joshi (Supra), Manik Chowgule (Supra), Ranjit

Machreker (Supra) and Seema Panchariya, these

decisions will have to be held as per incuriam.

(vi) Expression such report used in Section 173(5) of Cr.P.C.

refers to the police report in terms of Section 173(2) of

Cr.P.C. Section 173(5) of Cr.P.C. provides that in respect

of a case to which Section 170 applies, the police officer

shall forward to the Magistrate along with the report, the

documents referred to in sub-clauses (a) and (b). This

means that the report under Section 173(2) of Cr.P.C is

different and distinct from the documents and

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statements contemplated by Section 173 (5) Cr.P.C.

though, there is a directory requirement that such

documents and statements are required to be forwarded

to the Magistrate along with the police report under

Section 173(2) of Cr.P.C.

(vii) The police report containing all the details prescribed in

section 173(2) is complete in terms of the statutory

scheme. Therefore, merely because the documents or

statements as contemplated by Section 173(5) may not

have been forwarded by the police along with the

complete police report under Section 173(2), such police

report, will not be an incomplete police report and would

not entitle the accused a default bail under section

167(2);

(viii) The decision in the case of Satyanarayn Musadi (Supra)

make it clear that as long as the police report contains

the details prescribed under Section 173(2), such report

is a complete report in terms of Section 2(r). This

conclusion was recorded on board based as well as

narrow construction of statutory provisions. It was

further held that once a charge-sheet in terms of Section

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172(2) is filed within the stipulated time, the question of

grant of default bail, does not arise;

(ix) In the case of Suresh Kumar Bhikam Jain (supra),

charge-sheet containing the details specified in Section

173(2) had been filed within the time prescribed under

Section 167(2). However, no copy of the sanction order

was produced along with such a charge sheet. The

accused contended that in the absence of a sanction

order, the Magistrate had no authority to take cognizance

of the offense or to pass any further remand orders under

Section 309 and therefore the accused was entitled to

default bail under Section 167(2). This contention was

however negatived holding that a police report or

a charge sheet containing details specified in Section

173(2) had been filed within the period stipulated under

Section 167(2) and the issue of cognizance was to be

addressed later. The police report was complete even

though the sanction order was not accompanying it, and

therefore, the accused was not entitled to default bail. In

this case the Hon'ble Supreme Court considered its

several earlier rulings and held that none of such rulings

detract from the position that once a charge sheet is filed

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within the stipulated time, the question of grant of default

bail does not arise. The filing of a charge sheet is

sufficient compliance with the provisions of Section

167(2)(a)(ii) and whether cognizance is taken or not, is

not material as far as Section 167 Cr.P.C. is concerned;

(x) In Tara Singh (supra), the police filed their challan

(police report or charge sheet) on 03.10.1949 which was

the last date as stipulated under Section 167(2). The

report of the imperial serologist and drawing of the

sketch map of the occurrence was however produced by

filing a second challan on 05.10.1949 i.e. beyond the

period stipulated in Section 167(2). Based on this, the

accused contended that he was entitled to default bail

because the challan filed on 03.10.1949 was an

incomplete challan or that the first challan filed on

03.10.1949 stood vitiated on account of the filing of the

second challan on 05.10.1949. The Hon'ble Supreme

court speaking through Vivian Bose J. rejected the

aforesaid contention of the accused. The Court held that

the challan filed on 03.10.1949 was a complete challan,

even though the report of the imperial serologist or the

drawing of the sketch map of the occurrence did not

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accompany the same. The Court held that all that Section

173(1)(a) requires is that as soon as the police

investigation under Chapter XIV is complete there should

be a report forwarded to the Magistrate in the prescribed

form setting forth names of parties, nature of

information, and names of persons who appear to be

acquainted with circumstances of the case. Since all this

appears to have been done in the report of 02.10.1949,

the Court ruled that it was in fact a complete report as

contemplated under Section 173(1) of the Code even

though the police had themselves referred to it as an

incomplete report.

(xi) The Full Bench of Punjab and Haryana High Court in

State of Haryana v. Mehal Singh and Anr. - AIR 1978 P&H

341, on a detailed consideration of statutory provisions

and precedents on the subject, has held as follows:

"............... Since a report to qualify itself to be a 'police report' is required to contain only such facts as are mentioned in 173 (2), so if once it is found that the police report contained all those facts, then so far as the 'investigation' is concerned the same

Sajakali Jamadar 46 of 59 02-BA-301-2020-with-3505-2019with-3506-2019.doc

has to be considered to have been completed". ................Even if the investigating officer had not received the report of the expert, so far as his job of collecting of evidence is concerned, that is over the moment he despatches the material for the opinion of the expert and incidentally cites him as a witness if he relies on his testimony."

(xii) In Narendra Kumar Amin (supra), the Supreme Court

enumerated the information that must be detailed in the

police report forwarded to the Magistrate by investigating

officer as provided under Section 173(2). Even Section

190(1)(b) of Cr.P.C. refers only to a police report under

Section 173(2) for taking cognizance. The Court referred

to three judge bench judgment in C.B.I. Vs. R.S. Pai

(Supra), wherein it is held that omission in not producing

relevant documents at the time of submitting the police

report can always be made good by the police officer after

seeking leave to produce the same. If further investigation

is not precluded under Section 173(8), then, there is no

question of not permitting the prosecution to produce

additional documents which were gathered prior to or

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subsequent to the investigation and the word shall used in

Section 173(5) cannot be regarded as mandatory, but, is

only directory. The Court analysed statutory scheme and

concluded that as long as a police report containing the

details in Section 173(2) was filed within the period

stipulated in Section 167(2), there was no question of an

accused claiming a default bail. This decision is a

authority for the proposition that there is a distinction

between a police report under Section 173(2) and

documents and statements under Section 173(5) to

ordinarily accompany such a police report and that the

provisions of Section 173(5) about forwarding of

documents and statements alongwith police report, is

only directory and not mandatory. As long as a police

report containing the details prescribed in Section 173(2)

is filed within period stipulated in Section 167(2) such

police report cannot be regarded as incomplete or deficit

merely because all the documents or statements in terms

of Section 173(5) were not filed alongwith such a police

report. No question of default bail would arise in such a

case.

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(xiii) The decisions in Narendra Kumar Amin, CBI Vs. R.S. Rai

and Narayan Rao (Supra) in terms hold that, the

provisions of Section 173(5) are only directory

notwithstanding the use of the expression "Shall" therein.

This means that even if there is omission or failure on the

part of police officer to forward the documents and

statements as contemplated by Section 173(5) along with

the police report under Section 173(5) along with the

police report under Section 173(2) there is no scope to

hold that the police report under Section 173(2) is either

incomplete or that, the same was filed without the

completion of investigations by the police officer.

(xiv) The submission of counsel for accused that decision of

Supreme Court in the case of Narendra Kumar Amin

(Supra) holding that the provisions of Section 173(5) are

directory is per incuriam on the ground that it conflicts

court ratio in constitution bench decision in K.

Veeraswami (Supra) and that decisions of R.S, Pai

(Supra), and Narayan Rao (Supra) were decided under

old Cr.P.C. deserves to be rejected. The contention that

Narendra Kumar Amin (Supra) conflicts with the ratio of

constitution bench ruling in paragraph 76 of

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K.Veeraswami (Supra) was squarely raised in Narendra

Kumar Amin itself, but, the same was turned down. In

paragraph 15 of Narendra Kumar Amin (Supra), it was

observed that the observations made at paragraph 76 of

the constitution bench judgment in the case of

K.Veeraswamy (Supra) that the report is incomplete if it

is accompanied by all documents and statements of

witnesses as required under Section 173(5) of Cr.P.C.

cannot be construed as statement of law, since it was not

made in the context of the police report under Section

2(r) read with Section 173(2)(5) and (8) of Cr.P.C. On the

contrary, the three judge bench in the decision in C.B.I.

Vs. R.S. Pai (Supra) after referring to the earlier

judgment of the coordinate bench in Narayan Rao's case

(Supra), categorically held that, the word 'shall', used in

Sub-section (5) cannot be interpreted mandatory, but,

directory. Therefore, filing of the report containing

particulars mentioned under Section 173(2) amounted to

completion of filing of report. The reference bench than

observed that, Narendra Kumar Amin (Supra) makes

specific reference to K. Veeraswamy (Supra) will be

binding on this Court and decision of Narendra Kumarj

Amin (Supra) cannot be held to be per incuriam.

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(xv) Incidentally, in Aleksander Kurganov v. State of Goa &

Anr. - Criminal Misc. Application (Bail) No.37 & 38 of

2021 (F) (Bombay) dated 05.02.2021, the learned Single

Judge of our Court, in the context of NDPS Cases noted

the conflicting set of decisions on the issue of whether a

charge sheet can be said to be incomplete merely because

the CA/FSL report was not filed along with it within the

period stipulated under Section 167(2) Cr.P.C. After

noting this conflict the learned Single Judge further noted

that as a Single Judge, faced with a decisional conflict, the

principles of precedent do not allow him to choose one

over the other and that this issue must be resolved by a

bench of superior numeric strength. However, the

learned Single Judge, at para 66 held that the necessity of

a reference to a Division Bench is obviated on account of

the ratio in Dinesh Dalmiya (supra). The learned Single

Judge has observed that Dinesh Dalmiya (supra) is an

authority for the proposition that a mere absence of a

forensic report neither renders the charge sheet as

incomplete nor vitiates such a charge sheet. The Court

endorsed this reasoning of the learned Single Judge.

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(xvi) The counsel for accused were unable to demonstrate that

there was some significant change in the provisions of the

old Code and the new Code insofar as the status of a police

report or charge-sheet was concerned. On the analysis of

statutory provisions as also the decision that have

analysed various shades of such statutory provisions, a

police report or a charge - sheet containing the details

specified in Section 173(2), if filed within the period

prescribed under Section 167(2) is not vitiated or

incomplete simply because the same was not accompanied

by a C.A./F.S.L. report and based thereon, there is no

question of the accused insisting on default bail.

(xvii) The contention of learned counsel for the accused that

the cases under N.D.P.S. Act deserve special treatment

when it comes to interpreting the provisions of Section

167, 173, 190 and 309 of Cr.P.C. on account of the identity

of the substance is foundational fact to launch a

prosecution and in the absence of C.A./F.S.L. report in

N.D.P.S. cases, the Magistrate or special court will not be

in a position to take cognizance of the offences, cannot be

accepted. In the absence of any support from provisions of

Cr.P.C., it is not possible to accept the submission. The

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charge-sheet is the expression of opinion on the part of

investigating officer that so far he is concerned the

investigation is complete. Thereafter, it is for the

Magistrate or the special court to decide whether a case

has been made out to take cognizance of the offence or

not. In the precise context of cases under the N.D.PS. Act,

there is a long line of decisions delivered by the learned

Single Judge of this Court in Suwarnkar (Supra), Rafel

Garcia (Supra), Aleksander Kurgaonkar (Supra),

Shrihari Valse (Supra) and Sheikh Shabir (Supra), that

had taken a view that a charge-sheet unaccompanied by

C.A./F.S.L. report is not complete and, therefore, where

the same is filed within prescribed period, the accused

cannot insist on default bail. This decision reflects the

legal position correctly, and, therefore, the Court endorses

them.

(xviii) The contention that a Magistrate or the Special Court,

in any N.D.P.S. case, is not competent to take cognizance

of any offence based on a field-testing report, as reflected

in the panchanama or otherwise in the absence of

C.A./F.S.L. report is too wide a proposition to commend

acceptance. The Magistrate or Special Court will have to

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assess the charge-sheet and if necessary, the documents

and the statements produced under Section 173(5) and

thereafter decide whether any case is made out for taking

cognizance of the offence.

(xix) In Jagdish Purohit Vs. State of Maharashtra (Supra),

the Supreme Court after rejecting the C.A./F.S.L. report

sustained the conviction by accepting the evidence of the

members of the raiding party to prove that the powder

which was found in the factory was methaqualone. The

evidence was found sufficient to sustain a conviction even

after ignoring C.A./F.S.L. report. If a conviction could be

sustained on such evidence, cognizance of offence can be

taken based on such material produced along with the

charge-sheet. This has to be assessed on a case-to-case

basis.

(xx) Presentation of a police report under Section 173(2)

unaccompanied by a C.A./F.S.L. report does not amount to

any incomplete charge-sheet/ challan even in the absence

of an extension of time under Section 36 A(4) of the

N.D.P.S. Act. The accused cannot insist upon a default bail.

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(xxi) Police report under Section 173(2) or a

charge-sheet/challan accompanied by field testing reports, as

reflected in the panchanama or otherwise also cannot be

labelled as an incomplete police report/charge-sheet/challan

simply because the same was not accompanied by a C.A./F.S.L.

report.

(xxii) The "Drug Law Enforcement Field Officers Handbook",

issued by N.C.B. has no legal efficacy in the sense that it

has no statutory flavour or the handbook is not a set of

executive instructions issued by the Central Government.

(xxiii) The reference was answered as follows:

(a) Question no. (i) is answered by holding that even in an

NDPS case a police report containing the details

prescribed under Section 173(2) Cr.P.C. is a complete

police report or a charge sheet or a challan even if it is

unaccompanied by a CA/FSL report. If such police report

is filed within the period stipulated under Section 167(2)

Cr.P.C. r/w. Section 36-A(4) of the NDPS Act, the accused

cannot insist upon a default bail.

           (b)       Question no. (ii) is answered by holding that in an



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02-BA-301-2020-with-3505-2019with-3506-2019.doc

NDPS case, a charge sheet accompanied by a field testing

report as reflected in the Panchanama or otherwise also

cannot be labelled as an incomplete police report/charge-

sheet/ challan simply because the same was not

accompanied by a CA/FSL report.

(c) Question no. (iii) is answered by holding that the

Drug Law Enforcement Field Officers' Handbook issued by

the NCB has no legal efficacy, in the sense that the

handbook has no statutory flavour or the handbook is not

a set of executive instructions issued by the Central

Government.

36 In the light of the decision of Division Bench in the

case of Manas Krishna T.K. and various decisions referred to

hereinabove, these applications seeking bail in accordance with

Section 167(2) of Cr.P.C. read with Section 36A(4) of N.D.P.S.

Act are devoid of merits. Charge-sheet was filed within 180

days. The material on record in the nature of panchanama,

statement of witnesses, nature of commodity seized satisfied

the investigating agency that what was recovered is Ganja. In

the absence of field test which was not conducted and C.A.

report accompanying charge-sheet, it cannot be said that

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charge-sheet was incomplete. C.A. report which opines that the

contraband is Ganja, is on record. Requisition calling upon

analysis of samples were made to C.F.S.L. before completion of

180 days. Absence of C.A./F.S.L. report with charge-sheet

would not result in declaring the charge-sheet as incomplete.

The Division Bench has answered the reference as above. The

decision is binding on this Court. In several other decisions the

contention about right of default bail claiming that charge-

sheet is incomplete in the absence of CA/FSL has been rejected.

I am in agreement with the said view. The Division Bench while

answering the reference has endorsed the said view. The

decisions of this Court in which the said provisions is accepted

is held to be per per incuriam.

37 The investigating officer has forwarded letter to

C.A./F.S.L. with samples for analysis on 2nd August, 2019. The

CA report is now part of proceedings. The report is ordinarily

filed in the form prescribed. One of the requirement for

submission of Police Report is whether any offence appears to

have been committed. In the decisions referred to above it is

held that, even through experts report did not accompany

charge-sheet, it cannot be said that it is incomplete charge-

sheet. Once a charge-sheet is filed within stipulated time, the

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question of default bail does not arise. It cannot be held that

additional documents cannot be produced subsequently. There

is no specific provision due to which no additional documents

can be produced. When the charge-sheet is submitted without

reports of experts well within the period of 60/90/180 days,

merely because the report of expert was not filed along with it,

the accused is not entitled to be released on bail under Section

167(2) of Cr.P.C. In the present case C.A./F.S.L. report shows

that what was seized from accused is Ganja. The submission

that in NDPS case the report under Section 173(2) of the code

is incomplete in the absence of expert report cannot be

accepted. By virtue of section 293 of the Code any document in

the form of report of C.F.S.L. can be used as evidence in any

enquiry, trial or other proceedings, under the Code. It is open

to the Court to summon and examine scientific expert. The

satisfaction of investigating officer/members of raiding party

during seizure of contraband that what is recovered is Narcotic

drug/Psychotropic substance or controlled substance cannot be

doubted at this stage. The purpose of submission of the police

report with the details is to enable the Court to satisfy whether

on the basis of report and the material filed along with report,

case for taking cognizance has been made out or not. In the

light of observations in several decisions referred hereinabove,

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the police report or charge-sheet containing the details

specified under Section 173(2) of the Code is filed within

prescribed period, default bail cannot be granted. The word

'shall' used in Section 173(5) cannot be recorded as mandatory

but it is directory. As long as police report containing the

details in Section 173(2) was filed within stipulated period

under Section 173(2), there was no question of an accused

claiming default bail. In absence of provisions of law no

distinction can be made in NDPS case. In the present case

there was no field test conducted. The officers who seized the

contraband were of the opinion that on the basis of smell and

nature that it was Ganja. Even otherwise in consonance with

law laid down it various decisions, in the absence of CA report

with charge-sheet, it cannot be termed as incomplete. Bail

cannot be granted.

                        38                 Hence, I pass the following order:


                                                     ::    ORDER                 ::

Bail Application Nos. 301 of 2020, 3505 of 2019

and 3506 of 2019, are rejected, and, stand disposed of

accordingly.

(PRAKASH D. NAIK, J.) Digitally signed by SAJAKALI SAJAKALI LIYAKAT Sajakali Jamadar 59 of 59 LIYAKAT JAMADAR Date:

JAMADAR    2022.02.01
           13:40:33
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