Madhya Pradesh High Court
Sohrab Khan vs The State Of Madhya Pradesh on 2 January, 2024
Author: Prakash Chandra Gupta
Bench: Prakash Chandra Gupta
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 2 nd OF JANUARY, 2024
MISC. CRIMINAL CASE No. 44984 of 2023
BETWEEN:-
SOHRAB KHAN S/O AJIM KHAN PATHAN, AGED 20
YEARS, OCCUPATION: LABOR R/O DUNDHARKA P.S.
DALODA DISTT. MANDSAUR (MADHYA PRADESH)
.....APPLICANT
(BY SHRI HIMANSHU THAKUR - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION KOTWALI DISTT. MANDSAUR (MADHYA
PRADESH)
.....RESPONDENT/STATE
(BY SHRI HEMANT SHARMA - GOVT. ADVOCATE)
This application coming on for admission this day, the court passed the
following:
ORDER
Heard with the aid of case-diary.
This is the first application filed by the applicant under Section 439 of the
Code of Criminal Procedure, 1973 in connection with FIR/Crime No.171/2023
registered at Police Station - Kotwali, District - Mandsaur for commission of
offence punishable under Sections 8/22 and 29 of the Narcotic Drugs &
Psychotropic Substances Act.
2. Prosecution story, in brief is that on 24.03.2023, the applicant Sohrab
Khan was driving motorcycle bearing registration No.MP-14-NF-9255 and co-
accused Parvez was pillion rider. The co-accused Shamsher was also driving an
Activa scooty without any registration plate. The police had stopped both the
two wheelers. During personal search, the present applicant and co-accused
Parvez were found in possession of 80 gm of MD powder each, and co-
accused Shamsher was found in possession of 40 gm of MD power without
having any licence or authority. The police had seized the aforementioned
contraband substance and vehicle from possession of present applicant and co-
accused persons. A crime was registered against the applicant.
3. Learned counsel for the applicant/accused submits that the applicant
has not committed the offence and has falsely been implicated in the case. He
further submitted that the applicant is in custody since 24.03.2023. After
completion of investigation, charge-sheet has been filed. But no FSL report has
been filed alongwith charge-sheet. Therefore, the applicant is entitled for default
bail u/S 167(2) of Cr.P.C. The learned counsel has placed reliance in the case
of Divyas Bardewa V Narcotics Control Bureau [Special Leave to Appeal
(Criminal) 11628/2022].
4. Per contra learned counsel for the State/non-applicant has opposed the
prayer and submits that though FSL report has not been filed alongwith charge-
sheet, but the seized quantity of the contraband comes under commercial
quantity. Hence, the applicant is not entitled for bail only on the aforementioned
ground. He has placed reliance on the case of Khilan Singh V The State of
Madhya Pradesh [M.Cr.C No.35379/2022].
5. In the case of Divyas Bardewa (Supra) the Apex Court has opined
as under:-
"That aspect of the matter, at this juncture, need not be gone
into, since the said issue is pending consideration in a batch of
petitions which would take some time for hearing and this
petition is also to be considered along with those petitions.
For the present, we note, that even in the other pending cases
before this court in SLP Nos.8164-8166/2021 and other similar
petitions, without reference to the statutory bail, taking note that
petitioners have been in custody for some time and the trial
would take some more time to conclude, we had directed grant of
bail to the petitioners."
6. In the case of Khilan Singh (Supra) the coordinate bench of this
Court after considering several judgments passed by Apex Court and High
Courts has opined in paragraph 18 as under:-
"18. In the considered opinion of this Court, the word 'shall'
employed in Section 173 (5) of the Cr.P.C. is only directory in
nature in view of the judgment of Supreme Court in Narendra K.
Amin (supra). A conjoint reading of the provisions aforesaid
does not lead this Court to the conclusion that non-filing of FSL
report with the challan either vitiates the challan or makes the
applicant entitled for the default bail. Thus, I am in agreement
with the view taken by Rajasthan, Gujarat and Bombay High
Court in above mentioned cases and unable to pursuade myself
with the view taken by the Punjab and Haryana High Court."
7. In the case of Navin Kumar Pandu Jatot V State Of Maharashtra
[2022 SCC Online Bom 3131], in paragraph 37 has opined as under:-
"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 Sajakali Jamadar 57 of 59 02-BA-
301-2020-with-3505-2019with-3506-2019.doc 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, Sajakali Jamadar 58 of 59 02-
BA-301-2020-with-3505-2019with-3506-2019.doc 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."
8. In the case of Hashmat Mohammadi V State, NCT of Delhi [Bail
application No.2869/2023], the coordinate bench of Delhi High court has
opined in paragraph 19 has held as under:-
"19. This Court in Suleman vs. The State (Govt. of NCT of Delhi)
in Special Leave to Appeal (Crl.) No.1929/2023, also after
taking into Signature Not Verified Digitally Signed By : PALLAVI
VERMA Signing Date : 21.09.2023 16:18:13 consideration all
the judgments on this point has inter-alia held as under:
"13. At present, the settled law persists in the view that non
filing of FSL Report with the charge sheet does not fall
within the realms of Section 173(2) of the Cr.P.C so as to
consider itas & as "incomplete report". In the present case
although FSL Report has not been filed, however, the
charge sheet was already filed on 03.03.2021 within the
time period as per law. Further, the amount of quantity
recovered from the accused is of commercial nature baring
the accused from bail under Section 37 of the NDPS Act. "
9. The aspect of bail as a matter of right in case where the FSL report has
not been filed alongwith the charge-sheet is still pending for consideration
before Hon'ble the Apex Court.
10. Thus, having heard learned counsel for the parties, perused the case-
diary also considering the facts and circumstances of the case, in view of this
Court, no case is made out for grant of default/statutory bail to the applicant.
11. Resultantly, this bail petition is dismissed.
(PRAKASH CHANDRA GUPTA)
JUDGE
Shruti
