Gauhati High Court
Page No.# 1/13 vs The State Of Assam on 28 February, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/13
GAHC010016672025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./242/2025
NASIR UDDIN AND 2 ORS.
S/O LT ABDUL HALIM
RO JHOWDANGA PT 2 ,
PS- MANKACHAR ,
DIST. SOUTH SALMARA, ASSAM
2: ATIQUR RAHMAN
S/O NURUL HUSSAIN
R/O KAMARPUTA
P.S. RANGJULI
DIST. GOALPARA
ASSAM
3: SALIM UDDIN
S/O ABDUL SATTAR
R/O SORA MAMANG
P.S.KAKCHING
DIST.THOUBAL (MANIPUR
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MR. A PARAMANIK, P. KALITA
Advocate for the Respondent : PP, ASSAM,
Page No.# 2/13
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
28.02.2025
Heard Mr. A. Paramanik, learned counsel for the petitioners. Also heard Mr.
K.K. Parasar, learned Addl. P.P for the State.
2. By filing this Application u/s 483 of BNSS, 2023, the petitioners have
sought for bail in connection with Special Sessions (NDPS) Case No.80/2024
(arising out of Boko P.S Case No.272/2024) u/s 21 (c)/29 of NDPS Act pending
in the Court of Special Judge, Kamrup at Amingaon.
3. As per FIR, a source information was received that a narcotics
consignment was moving from Sora Karanchi area in Manipur to Goalpara in
Assam which would be received at Guwahati by a drugs peddler namely, Nasir
Uddin @ Nasir Bhai of Goalpara who would be moving by two vehicles, one MG
Hactor bearing No.AS01-FQ-3128 and a Maruti Dezire bearing No.AS01-FW-
3878, used as escort for Police checking. The alleged narcotics would be carried
from Manipur to Assam by one Md. Salim of Manipur.
4. Based on the information, a search operation was conducted and
accordingly the MG Hactor vehicle was intercepted in front of Boko P.S and three
occupants, namely, Nasir Uddin @ Nasir Bhai, Atikur and Salim i.e the present
petitioners were found inside the vehicle. The vehicle was searched and 30 soap
boxes containing 339 grams of suspected heroin were recovered. Accordingly,
the vehicle and the recovered drugs were seized and the petitioners were
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arrested.
5. The learned counsel for the petitioners has stressed his argument on some
anomalies carried on by the Investigating Officer during investigation. It is
submitted that as per FIR during Naka Checking in front of Boko Police Station,
the alleged MG Hactor vehicle was intercepted but the FIR is totally silent about
recovery of the suspected contrabands whether from inside the vehicle or
outside the vehicle and hence, this creates some doubt. Moreover, the informant
is quite silent about the presence of any independent witnesses at the time of
alleged recovery of those contraband articles.
6. It is further submitted that FIR discloses that total weight of the seized
contraband article was 339 grams without cover but in the inventory report
prepared by the I.O in presence of the Magistrate wherein the contraband
articles were found 300 grams without cover which is also reflected in the order
dated 18.06.2024, passed by the learned Magistrate. As such the FIR is
contradicted with the inventory report which creates some doubt regarding
seizure of such alleged contraband from the present petitioners.
7. Learned counsel for the petitioners has pointed out that the accused
petitioners were arrested on 16.06.2024 and their mandatory period of 180 days
was completed on 14.12.2024. Though charge-sheet has been laid on
02.10.2024 but without furnishing of the statement of the witnesses. As such,
the charge-sheet submitted by the I.O is not a complete charge-sheet as per
Section 193 of BNSS. Hence, the accused persons should deserve the benefit of
default bail. It is also submitted that the I.O though submitted charge-sheet
before the Trial Court but wherein he did not put his signature in the final form
and hence, the charge-sheet cannot be accepted as true opinion of the said I.O.
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8. Learned counsel for the petitioners has also contended that as per FIR,
one black and brown color shoulder bag was seized in connection with the
alleged case. But the seizure list shows seizure of one black color shoulder bag
which discrepancy creates some doubt regarding recovery and seizure of the
alleged contraband items.
9. Accordingly, learned counsel for the petitioners submits that as there are
several discrepancies regarding investigation as well as evidence of PW-1, the
informant, there is every possibility of acquittal of the petitioners. Under such
backdrop, the petitioners may be enlarged on bail.
10. In response, the learned Addl. P.P has submitted that the grounds taken
to release the accused petitioners on bail, are matter of trial which can be
decided by the trial court after examination of all the relevant witnesses. It is
further submitted that as commercial quantity of contraband were recovered
from the vehicle by which the petitioners were travelling, as such, Section 37 of
NDPS Act will come into play. Without examination of all other witnesses, it
cannot be said at this stage that Section 37 is complied with. Accordingly, the
learned Addl. P.P has prayed for dismissal of the bail application.
11. The main issue in this case is about entitlement of bail on the ground of
incomplete charge-sheet. Considering the submissions made by the learned
counsel for the petitioners and on perusal of the materials available on record, it
reveals that the petitioners have claimed statutory bail though the charge-sheet
had been filed well within the statutory period. In this case the only allegation
against the Investigating Agency is that though the charge-sheet has been filed
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within the statutory period but without statement of the witnesses recorded
during investigation. As such, according to the learned counsel for the
petitioners, it is incomplete charge-sheet. Hence, the petitioners are entitled for
default bail.
12. The Hon'ble Apex Court in CBI vs. Kapil Wadhawan and another, reported
in (2024) SCC Online SC 66 referring to various earlier judgments held that once
charge-sheet has been filed against the accused within prescribed time, the
accused cannot claim his statutory right of default bail u/s 167 (2) of Cr.PC on
the ground that investigation against other accused was pending. It would be
apposite to extract the following relevant paragraphs -
"23. The benefit of proviso appended to sub-section (2) of Section
167 of the Code would be available to the offender only when a
charge-sheet is not filed and the investigation is kept pending
against him. Once however, a charge-sheet is filed, the said right
ceases. It may be noted that the right of investigating officer to
pray for further investigation in terms of sub-section (8) of Section
173 is not taken away only because a charge-sheet is filed under
sub-section (2) thereof against the accused. Though ordinarily all
documents relied upon by the prosecution should accompany the
charge-sheet, nonetheless, for some reasons, if all the documents
are not filed along with the charge-sheet, that reason by itself
would not invalidate or vitiate the charge-sheet. It is also well
settled that the Court takes cognizance of the offence and not the
offender."
Page No.# 6/13
13. In Dinesh Dalmia vs. CBI, reported in (2007) SCC Online SC 1152, the
Hon'ble Apex Court has elaborately explained the scope of Section 167 (2) as
well as Section 173(8) of Cr.PC. The relevant paragraphs are reproduced herein
below -
"......19. A 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
requirements for submission of a police report is whether any
offence appears to have been committed and, if so, by 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 against such an accused who had been absconding, in
our opinion, law does not require that filing of the charge-sheet
must await the arrest of the accused.
20. Indisputably, the power of the investigating officer to make a
prayer for making further investigation in terms of sub-section (8)
of Section 173 is not taken away only because a charge-sheet
under sub-section (2) thereof has been filed. A further
investigation is permissible even if order of cognizance of offence
has been taken by the Magistrate.
Page No.# 7/13
21........
22. It is true that ordinarily all documents accompany the charge-
sheet.
But, in this case, some documents could not be filed which were
not in the possession of CBI and the same were with GEQD. As
indicated hereinbefore, the said documents are said to have been
filed on 20.01.2006 whereas the appellant was arrested on
12.02.2006. The appellant does not contend that he has been
prejudiced by not filing of such documents with the charge-sheet.
No such plea in fact had been taken. Even if, all the documents
had not been filed, by reason thereof submission of charge-sheet
itself does not become vitiated in law. The charge-sheet has been
acted upon as an order of cognizance had been passed on the
basis thereof. The appellant has not questioned the said order
taking cognizance of the offence. Validity of the said charge-sheet
is also not in question.
23 to 27..............
28. It is now well settled that the Court take cognizance of an
offence and not the offender. (See Anil Saran vs. State of Bihar
[(1995) 6 SCC 142] and Popular Muthiah vs. State [(2006) 7 SCC
296)]
29. The power of a court to direct remand of an accused either in
terms of sub-section (2) of Section 167 of the Code or sub-section
(2) of Section 309 thereof will depend on the stages of the trial.
Whereas sub-section (2) of Section 167 of the Code would be
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attracted in a case where cognizance has not been taken, sub-
section (2) of Section 309 of the Code would be attracted only
after cognizance has been taken....."
14. In the case of K. Veeraswami vs. Union of India and others, reported in
(1991) 3 SCC 655, wherein it was held that statutory requirement of report u/s
173 (2) of Cr.PC would be complied with, if various details prescribed therein are
included in the report. The report under Section 173 Cr.PC is an intimation to the
Court that upon investigation into the cognizable offence, Investigating Officer
has been able to procure sufficient evidence for the Court to inquire into the
offence and necessary information is being sent to the Court. It is not necessary
that all details of the offence must be stated. Though ordinarily all documents
relied upon by the prosecution should accompany the Charge Sheet,
nonetheless, if for some reasons, all documents are not filed, that reason by
itself would not invalidate or vitiate the Charge Sheet, as the Court takes
cognizance of the offence and not the offender. Once, from the material
produced along with Charge Sheet, Court is satisfied about the commission of
an offence and takes cognizance of the offence allegedly committed by the
accused, it is immaterial whether further investigation in terms of Section
173(8) Cr.PC. is pending or not. Pendency of further investigation for production
of some documents not available at the time of filing of the Charge Sheet would
neither vitiate the Charge Sheet nor entitle the accused to seek default bail on
that ground, as a matter of right. Relevant paragraphs from the judgment are as
follows:-
"21. In our opinion, the Constitution Bench in K. Veeraswami v.
Union of India has aptly explained the scope of Section
173(2)."76. The charge- sheet is nothing but a final report of
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police officer under Section 173(2) of the Cr.PC. The Section
173(2) provides that on completion of the investigation the
police officer investigating into a cognizable offence shall submit
a report. The report must be in the form prescribed by the State
Government and stating therein (a) the names of the parties; (b)
the nature of the information; (c) the names of the persons who
appear to be acquainted with the circumstances of the case; (d)
whether any offence appears to have been committed and, if so,
by whom (e) whether the accused has been arrested; (f)
whether he had been released on his bond and, if so, whether
with or without sureties; and (g) whether he has been forwarded
in custody under Section 170. As observed by this Court in Satya
Narain Musadi vs. State of Bihar [(1980) 3 SCC 152, 157 : 1980
SCC (Cri) 660] that the statutory requirement of the report
under Section 173(2) would be complied with if the various
details prescribed therein are included in the report. This report
is an intimation to the magistrate that upon investigation into a
cognizable offence the Investigating Officer has been able to
procure sufficient evidence for the court to inquire into the
offence and the necessary information is being sent to the court.
In fact, the report under Section 173(2) purports to be an
opinion of the Investigating Officer that as far as he is concerned
he has been able to procure sufficient material for the trial of the
accused by the court. The report is complete if it is accompanied
with all the documents and statements of witnesses as required
by Section 175(5). Nothing more need be stated in the report of
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the Investigating Officer. It is also not necessary that all the
details of the offence must be stated. The details of the offence
are required to be proved to bring home the guilt to the accused
at a later stage i.e. in the course of the trial of the case by
adducing acceptable evidence."
15. In the case of Rafael Palafox Garcia vs. Union of India, reported in 2008 All
MR (Cri) 3031, it was held that a charge-sheet is a final report within the
meaning of sub-section (2) of Section 173 of the Code. It is filed as to enable
the Court concern 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 chemical analyst 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 u/s 167 (2) of Cr.PC.
16. The High Court of Kerala in the case of Sameer vs. State of Kerala,
reported in 2021 0 Supreme (Kerela) 648, dealt with similar issue. The final
report was submitted by investigating officer in a case registered under NDPS
Act without analyst report. Hence, the accused 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 u/s 167(2) of Cr.PC.
The accused is entitled for bail u/s 167(2) of Cr.PC. The Court took a view that,
as per Section 2(h), investigation includes all the proceedings under Cr.PC., for
collection of evidence conducted by a police officer or by any person (other than
Magistrate), who is authorized by a Magistrate in this behalf. Therefore, the
investigation includes all the proceedings under the Code for collection of
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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.
17. 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 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
Page No.# 12/13
subsequent to investigation. In such cases, there cannot be
any prejudice to the accused."
18. 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.PC. 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-section
(2) of S.173 to the Magistrate, still 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)....."
19. Reverting to the case in hand, it is an admitted fact that when the charge-
sheet has been submitted, the statement of the witnesses were not annexed
with it. Subsequently as per direction of the trial court, the statement of the
witnesses were produced. It transpires that though the statements were
recorded by the I.O during investigation but due to some inadvertent mistake,
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the statement of the witnesses were not enclosed with the charge-sheet. One of
the requirements for submission of police report is that any offence appears to
have been committed. In the decisions referred to above, it was held that even
though the evidence of the witnesses including the experts report did not
accompany the charge-sheet, it cannot be said that it is an incomplete charge-
sheet. Once a charge-sheet is filed within stipulated time, the 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,
the statement of the witnesses well within the period of 60/90/180 days, merely
because the statement of the witnesses were not filed along with it, the accused
petitioners are not entitled to be released on bail u/s 167 (2) of Cr.PC.
20. In view of the aforesaid legal proposition, this Court has no hesitation to
hold that the charge-sheet having been filed against the accused petitioners
within the prescribed time limit and the cognizance having been taken by the
Special Court of the offence allegedly committed by the petitioners, the
petitioners could not have claimed the statutory right of default bail u/s 167 (2)
of Cr.PC on the ground that the investigation is incomplete as the charge-sheet
has been submitted without annexing the statement of the witnesses. The other
grounds taken by the learned counsel for the petitioners in granting bail are the
matters of trial which can be decided by the trial in accordance with law.
21. In the result, the bail application is rejected and disposed of accordingly.
JUDGE
Comparing Assistant
