Delhi High Court
Babu vs The State (Govt. Of Nct Of Delhi) on 25 September, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 4th September, 2020
Decided on: 25th September, 2020
+ BAIL APPLN. 2075/2020
BABU ..... Petitioner
Represented by: Mr.Kundan Kumar, Advocate.
versus
THE STATE (GNCT OF DELHI) ..... Respondent
Represented by: Ms.Meenakshi Chauhan, APP for the
State.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. The petitioner is in custody in case FIR No. 1203/2019 under Section
21(B) of the NDPS Act registered at P.S. Sultanpuri, Delhi. Case of the
prosecution is that on 6th December, 2019, the petitioner was found to be in
possession of 50 gms. of Heroin and 50 gms. of Heroin was recovered from
the co-accused.
2. According to learned counsel for the petitioner, the alleged recovery
from the petitioner being of a quantity less than the commercial quantity, the
maximum punishment which could be awarded to the petitioner was upto 10
years' imprisonment besides fine and thus, the charge sheet was required to
be filed within 60 days and the Special Judge had no jurisdiction to remand
the petitioner without charge sheet after 4th February, 2020. The charge
sheet was not filed till 4th February, 2020, hence, according to the petitioner,
he was entitled to bail under Section 167(2) CrPC. The petitioner was not
represented by a lawyer engaged by him and the learned Trial Court though
provided him with legal aid on the first day of remand before it i.e. 7 th
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December, 2019, however, thereafter, no advocate appeared for the
petitioner. As the petitioner was unrepresented by the legal aid counsel, he
was not advised to file an application seeking statutory bail after expiry of
the stipulated period of 60 days under Section 167(2)(a)(ii) CrPC and before
the filing of the charge sheet. Admittedly, the charge sheet was filed on 13 th
February, 2020 and that too, without the FSL report which could have
opined that the alleged recovery from the petitioner was of Heroin.
Thereafter, the petitioner filed an application for regular bail which came up
before the learned Special Judge on 22nd July, 2020 and was dismissed.
Even in the said petition, from the impugned order dated 22 nd July, 2020, it
is not evident that the learned Trial Court considered the aspect of grant of
default bail to the petitioner. Hence, the present petition seeks regular bail
in view of the charge sheet not having been filed within the statutory period
of 60 days under Section 167(2)(a)(ii) CrPC and no FSL report having been
filed till the filing of the present bail petition, petitioner is entitled to bail as
per the decisions in Ajit Singh @ Jeeta and Anr. Vs. State of Punjab,
Criminal Revision No. 4659 of 2015 (Division Bench, Punjab & Haryana
High Court), Gurpal Singh and Anr. Vs. State of Punjab, Crl.Revision
791/2016 (Punjab and Haryana High Court). The petitioner also seeks bail
on merits.
3. The present petition came up for hearing before this Court on 6 th
August, 2020 when the grounds as noted above urged were raised by the
learned counsel for the petitioner. Since proper reply was not filed on 19th
August, 2020 and even on 28th August, 2020, the petition was listed and
heard on 4th September, 2020. Only on 4th September, 2020, for the first
time, learned APP for the State submitted that the FSL report has been
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received and that supplementary charge sheet has been filed on 3rd
September, 2020.
4. Be that as it may, the date on which the present petition was filed and
notice was issued returnable for 19th August, 2020, no FSL report had been
filed before the learned Trial Court.
5. The issues urged by learned counsel for the petitioner in the present
petition are that admittedly, the charge sheet was not filed within the
statutory period of 60 days and the petitioner having been prevented from
filing an application seeking the default bail, for the reason, he was not
represented by a lawyer, it was the bounden duty of the learned Special
Judge to have informed the petitioner about his right of default bail as also
to provide legal aid in which the learned Special Judge failed. It is further
contended that even if the so called charge sheet was filed on 13 th February,
2020, the same was incomplete charge sheet as one of the essential
ingredients in the charge sheet was the requirement to show that the
recovery from the petitioner was of a contraband prohibited under the
provisions of NDPS Act, which basic/essential ingredient of the offence was
missing in the charge sheet filed on 13 th February, 2020. In the absence of
the report of the FSL and the said report having not been filed till the
petition was filed before the learned Additional Sessions Judge/Special
Judge in July, 2020 and even till petition was filed before this Court, the
petitioner was still entitled to grant of default bail.
6. It is a trite law that when a charge sheet is not filed within the
statutory period, the order of remand for judicial custody passed by the
learned Special Court would be an illegality and the accused would be
entitled to the default bail under Section 167(2)(a)(ii) Cr.P.C. for which the
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accused is required to file an application seeking default bail before the
charge sheet is filed.
7. Constitution Bench of the Hon'ble Supreme Court, in the decision
reported as (1994) 5 SCC 410 Sanjay Dutt Vs. State Through CBI, Bombay
(II), following the decision reported as AIR 1994 SC 2623 Hitendra Vishnu
Thakur and Ors. Vs. State of Maharashtra and Ors. held that, if before
application seeking default bail is filed by an accused, the charge sheet is
filed, the accused will not be entitled to the bail under Section 167(2)(a)(ii)
CrPC. It was also held that the indefeasible right of the accused to be
released on bail for non filing of the charge sheet within the statutory period
under Section 167(2) CrPC, is a right which enures to and is enforceable by
the accused only from the time of default till the filing of the challan and it
does not survive or remains enforceable on the challan being filed.
8. In the present case, the petitioner could not file an application seeking
indefeasible right to bail under Section 167(2) CrPC on account of inaction
on the part of the learned Special Court in ensuring that the petitioner was
represented by a counsel during the period of remand as well and that he
was informed of the said right.
9. Hon'ble Supreme Court has repeatedly emphasized the bounden duty
of the Trial Courts to inform the accused of his right to seek default bail. In
the decision reported as (2017)15 SCC 67 Rakesh Kumar Paul Vs. State of
Assam, expounding the duty of the Courts in providing free legal assistance
to the accused as also informing him of his right to seek the statutory bail,
held as under:-
"43. This Court and other constitutional courts have also taken
the view that in the matters concerning personal liberty and
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penal statutes, it is the obligation of the court to inform the
accused that he or she is entitled to free legal assistance as a
matter of right. In Khatri v. State of Bihar the Judicial
Magistrate did not provide legal representation to the accused
since they did not ask for it. It was held by this Court that this
was unacceptable and that the Magistrate or the Sessions Judge
before whom an accused appears must be held under an
obligation to inform the accused of his or her entitlement to
obtain free legal assistance at the cost of the State. In Suk Das
v. Union Territory of Arunachal Pradesh the accused was tried
and convicted without legal representation, due to his poverty.
He had not applied for legal representation but notwithstanding
this, this Court held that the trial was vitiated and the sentence
awarded was set aside, particularly since the accused was not
informed of his entitlement to free legal assistance, nor was an
inquiry made from him whether he wanted a lawyer to be
provided at State expense. In Rajoo @ Ramakant v. State of
Madhya Pradesh the High Court dismissed the appeal of the
accused without enquiring whether he required legal assistance
at the expense of the State even though he was unrepresented.
Relying on Khatri and Suk Das this Court remanded his appeal
to the High Court for re-hearing after giving an opportunity to
the accused to take legal assistance. Finally, in Mohammed
Ajmal Mohammad 22 (1981) 1 SCC 627 23 (1986) 2 SCC 401
24 (2012) 8 SCC 553 28 Amir Kasab v. State of Maharashtra
this Court relied on Khatri and held that in paragraph 474 of
the Report as follows:
"474... it is the duty and obligation of the Magistrate
before whom a person accused of committing a
cognizable offence is first produced to make him fully
aware that it is his right to consult and be defended
by a legal practitioner and, in case he has no means
to engage a lawyer of his choice, that one would be
provided to him from legal aid at the expense of the
State. The right flows from Articles 21 and 22(1) of
the Constitution and needs to be strictly enforced.
We, accordingly, direct all the Magistrates in the
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country to faithfully discharge the aforesaid duty and
obligation and further make it clear that any failure
to fully discharge the duty would amount to
dereliction in duty and would make the Magistrate
concerned liable to departmental proceedings."
44. Strong words indeed. That being so we are of the clear
opinion that adapting this principle, it would equally be the
duty and responsibility of a court on coming to know that the
accused person before it is entitled to 'default bail', to at least
apprise him or her of the indefeasible right. A contrary view
would diminish the respect for personal liberty, on which so
much emphasis has been laid by this Court as is evidenced by
the decisions mentioned above, and also adverted to in Nirala
Yadav.
45. On 11th January, 2017 when the High Court dismissed
the application for bail filed by the petitioner, he had an
indefeasible right to the grant of 'default bail' since the
statutory period of 60 days for filing a charge sheet had
expired, no charge sheet or challan had been filed against him
(it was filed only on 24th January, 2017) and the petitioner had
orally applied for 'default bail'. Under these circumstances, the
only course open to the High Court on 11th January, 2017 was
to enquire from the petitioner whether he was prepared to
furnish bail and if so then to grant him 'default bail' on
reasonable conditions. Unfortunately, this was completely
overlooked by the High Court.
46. It was submitted that as of today, a charge sheet having
been filed against the petitioner, he is not entitled to 'default
bail' but must apply for regular bail - the 'default bail' chapter
being now closed. We cannot agree for the simple reason that
we are concerned with the interregnum between 4th January,
2017 and 24th January, 2017 when no charge sheet had been
filed, during which period he had availed of his indefeasible
right of 'default bail'. It would have been another matter
altogether if the petitioner had not applied for 'default bail' for
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whatever reason during this interregnum. There could be a
situation (however rare) where an accused is not prepared to
be bailed out perhaps for his personal security since he or she
might be facing some threat outside the correction home or for
any other reason. But then in such an event, the accused
voluntarily gives up the indefeasible right for default bail and
having forfeited that right the accused cannot, after the charge
sheet or challan has been filed, claim a resuscitation of the
indefeasible right. But that is not the case insofar as the
petitioner is concerned, since he did not give up his indefeasible
right for 'default bail' during the interregnum between 4 th
January, 2017 and 24th January, 2017 as is evident from the
decision of the High Court rendered on 11th January, 2017. On
the contrary, he had availed of his right to 'default bail' which
could not have been defeated on 11th January, 2017 and which
we are today compelled to acknowledge and enforce.
47. Consequently, we are of opinion that the petitioner had
satisfied all the requirements of obtaining 'default bail' which is
that on 11th January, 2017 he had put in more than 60 days in
custody pending investigations into an alleged offence not
punishable with imprisonment for a minimum period of 10
years, no charge sheet had been filed against him and he was
prepared to furnish bail for his release, as such, he ought to
have been released by the High Court on reasonable terms and
conditions of bail".
10. The facts of the present case are undoubtedly distinguishable from the
facts in Rakesh Kumar Paul (supra) as between the period of 4th February,
2020 to 13th February, 2020, the petitioner having not been informed about
his indefeasible right to default bail, he could not seek the same by filing an
application and as held in a catena of decisions of the Hon'ble Supreme
Court, unless the accused applies for the default bail during the said period,
the accused will not be entitled to the same as a matter of right.
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11. In the decision reported as AIR 1994 SC 2623 Hitendra Vishnu
Thakur and Ors. Vs. State of Maharashtra and Ors., it was laid down that
the default in completing the investigation within the stipulated period
though gives an indefeasible right in favour of the accused, however, the
accused cannot be granted bail automatically without filing any application
to get benefit thereon.
12. Since in the present case, the petitioner has not applied for default bail
not even orally during the period from 4th February, 2020 to 13th February,
2020, the petitioner is not entitled to the default bail on this count.
13. The second submission of the learned counsel for the petitioner is that
since the charge sheet was filed without the FSL report in an offence under
the NDPS Act wherein mere possession of the contraband is an offence, the
same would amount to filing of an incomplete charge sheet and thus, the
petitioner having exercised the right of bail before filing of the complete
charge sheet, the petitioner would be entitled to default bail.
14. Learned counsel for the petitioner in this regard has relied upon the
decision of the Division Bench of the Punjab and Haryana High Court in a
batch of criminal revision petitions titled as Ajit Singh alias Jeeta and
Another Vs. State of Punjab and connected petitions, Criminal Revision No.
4659 of 2015 decided on 30th November, 2018 wherein, Punjab and Haryana
High Court, while dealing with the issue whether a charge sheet, without the
report of the Chemical Examiner/Forensic Science Laboratory, amounts to
an incomplete challan and in the absence of any extension of time under
Section 36-A(4) of the NDPS Act, the accused is entitled to bail under
Section 167 CrPC, considered the common question which was referred to
the Division Bench in seven cases i.e.:
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"Whether the presentation of report under Section 173(2)
Cr.P.C. by the police without the report of Chemical
examiner/Forensic Science Laboratory amounts to
incomplete challan and in the absence of any extension of
time under Section 36-A(4) of the N.D.P.S. Act, the
accused is entitled to bail under Section 167(2) Cr.P.C.?"
15. In the aforesaid case under reference, the learned Single Judge also
noted that some of the contrabands like Opium could be identified through
naked eyes which proposition of the learned Single Judge was rejected by
the Division Bench and it was held that the only way the nature of
contraband can be established is on the basis of a Chemical Examiner's
report and for this reason, the Chemical Examiner's report assumes an
immense significance for the Trial Court to formulate an opinion as the very
cognizance of an offence would depend on it. Therefore, it was held that the
non-inclusion of the Chemical Examiner's opinion in the report under
Section 173 CrPC would expose the accused to unfounded dangers
imperiling and endangering his liberty since the provisions of the NDPS Act
in its applicability to a trial and conclusion are stringent in consequence.
The Division Bench of the Punjab and Haryana High Court held that for this
reason as well, it is essential that the report of the Chemical Examiner be
included in the report under Section 173 CrPC and without which, it can, at
best, be termed to be an incomplete challan depriving the Magistrate of
relevant material to take cognizance and if it is not submitted within the
statutory period, the accused will be entitled to the benefit of default bail
unless an application is moved by the Investigating Agency apprising the
Court about the status of investigation with a prayer for extension of time to
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the satisfaction of the Court. The Division Bench of the Punjab and
Haryana High Court held:
'What flows from the above is that when a report is
submitted by the Police to the Magistrate, he ought to apply
his mind to see whether it discloses the commission of an
offence, so as to enable it to subject the accused to the rigors
of a trial.
What would also necessarily flow from this, would be
a prima facie opinion by the Court of the commission of an
offence which under the N.D.P.S. Act would revolve around
establishing the possession of contraband, its nature,
content and extent.
With respect to the question posed by the learned
Single Judge regarding some of the contraband being
identifiable through naked eye, inspection based on
experience and knowledge, would be a great fallacy and we
would respectfully state that it would be grossly unsafe to
rely upon such an opinion based on naked eye inspection
backed by experience or knowledge to arrive at a prima
facie opinion of the commission of an offence to submit an
accused to the rigors of trial by the Magistrate in the
exercise of its powers under Section 190 Cr.P.C.
The only way that it can be done is to establish the
nature of contraband on the basis of the Chemical
Examiner's report and for this reason, the Chemical
Examiner's report assumes an immense significance for the
trial Court, to formulate an opinion as the very cognizance
of an offence would depend on it. Non-inclusion of the
Chemical Examiner's opinion in the report under Section
173 Cr.P.C. would expose the accused to unfounded dangers
imperiling and endangering his liberty since the provisions
of the N.D.P.S. Act in its applicability to a trial and
conclusion are stringent in consequence.
For this reason as well, it is essential that the report
of the Chemical Examiner be included in the report under
Section 173 Cr.P.C. and without which it can at best be
termed to be an incomplete challan depriving the Magistrate
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of relevant material take cognizance and if it is not
submitted within the requisite period of 180 days, it would
essentially result in a default benefit to the accused unless
an application is moved by the Investigating Agency
apprising the Court of status of investigation with a prayer
for extension of time to the satisfaction of the Court.
We emphasize on the stringent aspect of the N.D.P.S.
Act which would compellingly persuade us to take the
aforesaid view. Without determining the nature and content
of the contraband, it would be draconian to propel an
accused into the throes of a trial. The liberty of an
individual would constantly be imperiled at the hands of
dubious officials of the police who may venture to falsely
implicate a person.
It is for this reason that we would unhesitatingly
conclude that the Chemical Examiner's report is an
essential; integral and inherent part of the investigation
under the N.D.P.S. Act as it would lay the foundation of an
accused's culpability without which a Magistrate would not
be enabled to form an opinion and take cognizance of the
accused's involvement in the commission of offence under
the Act.
We are conscious of the fact that these issues have
arisen largely on account of the inability of the State to
provide the Chemical Examiner's report in time ostensibly
for the reason that it is not equipped with enough
laboratories to examine the contraband but for that, it is the
State which has to be faulted and it would do well to hone up
its own infrastructure so that the accused who deserves
punishment, does not get the benefit of law and go scot free
and gain access to a undeserving liberty'.
16. However, this very question of law, whether cognizance by the
Magistrate/Special Judge could be taken on a charge sheet without the report
of the Chemical Examiner/Forensic Science Laboratory under NDPS Act,
was referred to the Division Bench of the High Court of Delhi. In the
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decision on the said reference reported as 39 (1989) DLT 392 Kishan Lal
Vs. State decided on 22nd September, 1989, this Court held as under:-
"(5) The question raised by the petitioners in a nut shell is
whether the investigation of a case under the NDPS Act can be
said to be complete in the absence of the report of the
Scientific Officer and Chemical Examiner? The contention is
that where the accused person is allegedly found in possession
of or transporting a prohibited drug or substance, mainly two
facts have to be established by the prosecution viz., (I) that of
recovery of the commodity or substance and (2) that the
possession of the said recovered material is illegal under the
provisions of the NDPS Act. It is submitted that the
Investigating Officer would be unable to give his opinion
regarding the second aspect till he obtains the report of the
expert and, Therefore, the report submitted by the
Investigating Officer even if purported to be under Section
173(2) of the Code, must be held to be based on incomplete
investigation.
(6) The learned Single Judge in his reference order has
noticed that the reported cases in which this question has been
settled related to offences under the Indian Penal Code. it was
urged before him that the principles enunciated in those cases
are not applicable to cases involving an offence under the
NDPS Act or the old Opium Act or the Excise Act. To
appreciate the contentions raised in these petitions, we have to
notice the case law to some extent to highlight the settled
principles.
(7) It has been held by the Supreme Court that although the
police are not permitted to send an incomplete report under
Section 173(2) of the Code, yet the investigation except for the
report of an expert like the Serologist or Scientific Officer and
Chemical Examiner is complete and, Therefore, the Magistrate
is empowered to take cognizance of the offence on a police
report which does not include the expert's opinion. In Tara
Singh v. State. MANU/SC/0030/1951 : [1951]2SCR729, the
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Police had in fact filed a report dated the 2nd October, 1949
terming it an "incomplete challenge "and on the 5th October
they filed a report which they called a "complete challan".
Thereafter on the 19th October they filed yet another report
which was termed as "Supplementary challan". The objection
taken at the trial was that the Magistrate had no power to take
cognizance of the case on 3rd October when the incomplete
challan dated 2nd October, 1949 was placed before him. It
was contended that the Police are not permitted to file an
incomplete report under Section 173(2) of the Code.
(8) It appears from paragraph 14 of the reported judgment
that the witnesses named by the police in the second report,
i.e. the report of 5th October, 1949 were not the witnesses who
were "Acquainted with the circumstances of the case" but
merely formal witnesses who had either examined the injured
or recorded the dying declaration. It further appears that vide
the report dated 19th October, 1949 which was termed as
"supplementary challan", the report of the Imperial Serologist
and the drawing of a sketch map of the occurrence were
sought to be placed on the record- Negativing the contention
that the Magistrate had not taken proper cognizance, it was
held that the police report dated 2nd October. 1949 was a
complete report within the meaning of Section 190(1)(b) of the
Code as entire investigation was complete. Thus the challan
dated the 5th October, 1949 and the supplementary challan
dated the 19th October, 1949 did not vitiate the first report
which had been termed as an "incomplete challan". It is useful
to quote paragraph 14 of the reported judgment:
"WHEN the police drew up their challan of 2-10-1949 and
submitted to the court on the 3rd, they had in (act completed
their investigation except for the report of the Imperial
Serologist and the drawing of a sketch map of the occurrence.
It is always permissible for the Magistrate to take additional
evidence not set out in the challan. Therefore, the mere fact
that a second challan was put in on 5th October would not
necessarily vitiate the first. All that Section 173(1)(a) requires
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is that as soon as the police investigation under Chapter 14 of
the Code is complete, there should be forwarded to the
Magistrate a report in the prescribed form : "Setting forth the
names of the parties, the nature of the information and the
names of the persons who appear to be acquainted with the
circumstances of the case".
All that appears to have been done in the report of 2nd
October which the police called their incomplete challan. The
witnesses named in the second challan of 5th October were not
witnesses who were 'acquainted with the circumstances of the
case. They were merely formal witnesses on other matters. So
also in the supplementary challan of the 19th. The witnesses
named are the 1st Class Magistrate, Amritsar, who recorded
the dying declaration, and the Assistant Civil Surgeon. They
are not witnesses who were "acquainted with the
circumstances of the case." Accordingly, the challan which the
police called an incomplete challan was in fact a completed
report of the kind which Section 173(1)(a) of the Code
contemplates. There is no force in this argument and we hold
that the Magistrate took proper cognizance of the matter."
XXX XXX XXX
"15) We respectfully agree with the earlier decision of this
Court in Tej Singh's case (supra). The decision in Hari Chand
and Raj Pal v. State (supra) by a single Judge of this Court
wherein it has been held that an "incomplete challan is not a
police report within the admit of Section 173(2) of the Code
does not support the case of the petitioners. From the reported
judgment it. is not clear whether all the witnesses or some of
them "acquainted with the circumstances of the case" were yet
to be examined when the report was filed The reason for
calling it incomplete is no discernible. But it is safer to assume
from the reading of the judgment that the investigation was not
complete. Thus the report as envisaged under Section 173(2)
of the Code could not have been filed.
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(16) It is unnecessary for us to notice other judgments cited by
the learned counsel in support of their plea that the
investigation in a case like the present is to be held to be
incomplete. In our view the Supreme Court decision in Tara
Singh's case (supra) holding, inter alia. that a police report
which is not accompanied by the expert's opinion, is to be held
to be complete report as long as the witnesses who are
acquainted with the circumstances of the case have been
examined, continues to be law in spite of amendments in
Section 173 of the Code.
(17) Now to advert to the main plea it is contended that for
offences under the NDPS Act, the report under Section 173(2)
of the Code, which in law is complete (the investigating officer
having carried out all his mandatory duties), is to be
considered "incomplete" in the absence of the opinion of the
expert, in our view the submission is entirely misconceived.
Apparently the power of the Magistrate to take cognizance of
offences upon a police report is being related to the duly 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. However, no duty is cast on the
Magistrate to take cognizance of the offence on a report which
although complete except for the expert's opinion, does not
make out an offence. While exercising his judicial discretion it
is open to the Magistrate to seek a copy of the expert's opinion.
There may even be cases under the NDPS Act where no public
witnesses have been cited but that fact by itself would not show
that till such lime the Government expert's opinion is received,
the investigation is incomplete. The police report if filed in
accordance with the provisions of Section 173 of the Code
would be complete report but the Magistrate in his judicial
discretion may not take cognizance of the offence. Thus the
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provisions (if Section 173 of 'he Code have to be considered
separate and distinct from Section 190(l)(b) of the Code.
(18) As far as the expert's report is concerned, we may note
that by virtue of Subsection (4) of Section 293 of the Code, any
document purporting to be report under the hand of the
Director or a Deputy Director or Assistant Director of a
Central forensic Science Laboratory or State Forensic Science
Laboratory can be used as evidence in any inquiry, trial or
other proceedings under the Code. It is true that it is open to
the Court where it thinks fit to summon and examine the
Government Scientific expert. But he is not a formal witness
and, Therefore, no duty is cast upon the investigating officer to
cite him as a witness.
(19) We thus hold that under Section 173 of the Code there is
no mandate that a police report must enclose the document
purporting to be a report under the hand of a Government
scientific expert. In the present cases, as cognizance of the
offences taken by the Magistrate was proper and valid, no
order releasing the petitioners on bail under Section 167(2) of
the Code was required to he passed".
17. As noted above, the Division Bench of this Court relied upon the
decision of the Supreme Court in (1951) 2 SCR 729 Tara Singh Vs. State
which did not relate to an offence punishable under NDPS Act. A distinction
can clearly be drawn between the cases relating to offences under the Indian
Penal Code and offences under NDPS Act, for the reason, in a charge sheet
filed without a FSL report, say for example, for an offence punishable under
Section 302 IPC, the prosecution cites witnesses who may be the eye
witnesses or of circumstantial evidence besides the post-mortem report,
MLC etc. which material in itself is sufficient to constitute the ingredients of
the offence(s) alleged by the prosecution. The FSL report in the said charge
Digitally Signed By:SANDEEP
KUMAR
Signing Date:25.09.2020 12:24:12
This file is digitally signed by PS
to HMJ Mukta Gupta
sheet only supplements the material already filed by the prosecution. This is
in contradistinction to an offence punishable under NDPS Act where the
possession of the contraband itself is an offence and if the prosecution in the
charge sheet is not able to show that the alleged recovery from the accused
was prohibited under the provisions of the NDPS Act, the basic ingredient of
the offence would be missing, therefore, the cognizance on such a charge
sheet would suffer from total non-application of mind and would be non-est.
It is trite law that Court takes cognizance of the offence and not the offender.
Thus unless the ingredients which constitute the offence are established in
the charge sheet, the cognizance of the offence alleged in the charge sheet
by the Magistrate/Special Court would be illegal.
18. Though this Court is of the view that the decision of the Division
Bench of the Punjab and Haryana High Court is an appropriate opinion in
relation to cognizance of an offence under NDPS Act without the FSL report
being an illegality, however, bound by the Division Bench decision of this
Court, judicial discipline mandates this Court to follow the same.
Consequently, in view of the decision of the Division Bench of this Court in
Kishan Lal Vs. State (supra), it is held that the petitioner is not entitled to
grant of bail under Section 167(2) CrPC for non-filing of the FSL report
along with the charge sheet.
19. In the alternative petitioner also seeks bail on merits. The petitioner
was apprehended by a team of Narcotics Squad on 6th December, 2019
pursuant to an information received that the petitioner along with the co-
accused was supplying smack in the area of Sultanpuri and Wazirpur J.J.
colony and would come for the supply at about 6.30-7 pm. On the pointing
out of the informer, the petitioner and the co-accused were apprehended and
Digitally Signed By:SANDEEP
KUMAR
Signing Date:25.09.2020 12:24:12
This file is digitally signed by PS
to HMJ Mukta Gupta
a notice under Section 50 of the NDPS Act was served on the petitioner and
the co-accused and they were informed about their right to be examined
before a Gazetted Officer and Magistrate. Despite refusal of the petitioner
and the co-accused, ACP (Operations) was present when the search was
conducted and on the search of the petitioner, 50 gms of Heroin was
recovered and another 50 gms of Heroin was recovered from the co-accused.
Two samples of 5 gms each were drawn and kept in separate pullandas. The
samples and the remaining contraband were sealed and after performing the
necessary codal formalities, the same were deposited in the Malkhana.
20. Considering the nature of drug/Heroin allegedly recovered from the
petitioner and no procedural infirmity having been pointed out, this Court
finds no ground to grant bail to the petitioner on merits as well. Petition is
dismissed.
21. Copy of the order be uploaded on the website of this Court.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 25, 2020
akb
Digitally Signed By:SANDEEP
KUMAR
Signing Date:25.09.2020 12:24:12
This file is digitally signed by PS
to HMJ Mukta Gupta
