Madhya Pradesh High Court
Mohammad Tokir vs The State Of Madhya Pradesh on 8 May, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
NEUTRAL CITATION NO. 2025:MPHC-IND:12532
1 MCRC-16602-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 8 th OF MAY, 2025
MISC. CRIMINAL CASE No. 16602 of 2025
MOHAMMAD TOKIR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Khuzema Kapadia, Advocate for the applicant.
Ms. Mridula Sen, Govt. Advocate for the respondent/State.
ORDER
This second application has been filed by applicant under Section 483
of Bharatiya Nagarik Suraksha Sanhita, 2023 for grant of bail in connection
with Crime No.156/2024 registered at Police Station-Nai Aabadi, District
Mandsaur(M.P.) for offence punishable under Sections 8/15, 22 and 29 of
NDPS Act, 1985. Applicant is in judicial custody since 05.08.2024. His first
application was dismissed as withdrawn vide order dated 13.03.2025, passed
in M.Cr.C. No.56007 of 2024.
As per the case of prosecution, A.S.I. Sunilsingh Tomar of P.S. Nai
Aabadi, Mandsaur(M.P.) received a secret information that Tokir Ahmad @
Mohammad Tokir S/o Mohammad Ismail Ahmad is transporting the narcotic
contraband Doda-chura(poppy-straw) and MD powder(Mephedrone).
Accordingly, the higher officials were intimated and a raid was conducted on
05.08.2024. Tokir Ahmad(applicant) was apprehended on Jaipura Fanta
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bifurcation at Dalauda, Mandsaur road. On his search in compliance with the
procedure, 7 Kilo 500 Grams of narcotic contraband - poppy-straw and 160
Grams of narcotic contraband MD(Mephedrone) was recovered from the
possession of Tokir Ahmad. Both the contrabands were seized in due
compliance with the procedure. Applicant - Tokir was arrested. Crime
No.156/2024 for offence punishable under Sections 8 R/w Section 15, 22
and 29 of NDPS Act was registered. On completion of investigation, final
report was submitted on 31.01.2025.
Learned counsel for the applicant, in addition to the grounds
mentioned in the application, submits that the applicant is falsely implicated
in this matter. The chemical analysis report of C.F.S.L. Bhopal with regard
to contraband Mephedrone, was not submitted alongwith the charge-sheet,
therefore, charge-sheet was incomplete. Learned counsel referring to the
order dated 05.11.2024, passed in M.Cr.C. No.32575/2024, order dated
11.12.2021 and 13.12.2021, passed in S.L.A.(Crl.) No(s)8164-8166/2021 by
the Hon'ble Supreme Court, order dated 01.05.2023, passed by the Hon'ble
Supreme Court in SLA(Crl.) No(s)11628/2022, order dated
04.12.2023 (Pankaj Gupta Vs. Narcotics Control Bureau), passed by the
Hon'ble Supreme Court in SLA(Crl)No(s).12200/2023, order dated
21.11.2023, passed in SLA(Crl) No(s).43791/2023 [Pabitra Narayan Pradhan
Vs. The State (NCT) of Delhi] and order dated 21.04.2025, passed in S.L.P.
(Criminal) No.2993/2025(Jabir Kha Vs. State of M.P.) contends that the
FSL report was tendered without filing the supplementary charge-sheet.
Therefore, the applicant deserves to be enlarged on bail.
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Per contra, learned counsel for the respondent/State opposes the bail
application on the ground of gravity of alleged offence.
Heard the arguments, perused the grounds for grant of bail stated in
the application and the case diary.
As per the case of prosecution, applicant was apprehended while
transporting two different contrabands. 07 Kilo 500 Grams of narcotic
contraband - poppy-straw and 160 Grams of narcotic contraband
MD(Mephedrone) were allegedly recovered from the possession of the
applicant. The chemical analysis report with regard to the Poppy-straw was
received and enclosed with the final report. The chemical analysis report
with regard to other contraband i.e. Mephedrone(MD) was received and
submitted after filing of the final report on 05.05.2025. Hon'ble Supreme
Court in the case of Hanif Ansari Vs. State(Govt. of NCR of Delhi) reported
in 2024 SCC OnLine SC 537 referring to order in the case of Mohd. Arbaz
v. State(NCT of Delhi) 2020 SCC OnLine Del 2542 and Kishan Lal v. State
1989 SCC OnLine Del. 348 held as under :-
3. The point to be addressed in this matter is as to whether non-furnishing
of the FSL report with the chargesheet, within the prescribed time, would
entitle an accused to default bail on the ground that it would be an
incomplete chargesheet without such a report. The High Court in the
impugned judgment rejected the bail plea of the petitioner, holding, inter-
alia:-
"9. A Coordinate Bench of this Court in Mohd. Arbaz v. State (NCT of Delhi),
2020 SCC Online Del 2542, had taken a view that the accused would not be
entitled to statutory bail merely because the FSL Report was not part of the
chargesheet. An appeal against the said judgment is pending before the
Supreme Court.
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10. The Division Bench of this Court in Kishan Lal v. State, 1989 SCC
Online Del 348, has held that it is not mandatory to file the FSL Report along
with the chargesheet. The relevant observations are set out below:
"19. We thus hold that under Section 173(2) 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 be passed."
11. A Coordinate Bench of this Court in Suleman v. The State (NCT of
Delhi), 2022 SCC Online Del 2346, has held that non filing of the FSL
Report with the chargesheet would not entitle the accused to grant of
statutory bail. Relevant observations are set out below:
"14. 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 it 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."
12. The aforesaid judgments were followed by another Coordinate
Bench of this Court in Hashmat Mohammadi (supra), in which the grant
of statutory bail was rejected by the Coordinate Bench despite non-
filling of the FSL Report with the chargesheet."
4. In the special leave petition filed by said Mohd. Arbaz [SLP (crl.) Nos.8164-
8166/2021], interim bail was granted to the petitioner therein. A Co-ordinate
Bench of this Court in the case, Central Bureau of Investigation v. Kapil
Wadhawan and Anr., 2024 INSC 58 dealt with the question of an incomplete
chargesheet and its impact on the bail plea of an accused. It has been held and
observed in this judgment:-
"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
chargesheet is not filed and the investigation is kept pending
against him. Once however, a chargesheet is filed, the said right
ceases. It may be noted that the right of the investigating officer to
pray for further investigation in terms of sub-section (8) of Section
173 is not taken away only because a chargesheet is filed under
sub-section (2) thereof against the accused. Though ordinarily all
documents relied upon by the prosecution should accompany the
chargesheet, nonetheless for some reasons, if all the documents
are not filed along with the chargesheet, that reason by itself
would not invalidate or vitiate the chargesheet. It is also well
settled that the court takes cognizance of the offence and not the
offender. Once from the material produced along with the
chargesheet, the court is satisfied about the commission of an
offence and takes cognizance of the offence allegedly committed
by the accused, it is immaterial whether the further investigation
in terms of Section 173(8) is pending or not. The pendency of the
further investigation qua the other accused or for production of
some documents not available at the time of filing of chargesheet
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would neither vitiate the chargesheet, nor would it entitle the
accused to claim right to get default bail on the ground that the
chargesheet was an incomplete chargesheet or that the chargesheet
was not filed in terms of Section 173(2) of Cr.P.C."
5 . Learned counsel for the petitioner relied on certain orders passed by this
Court in (i) SLP(Crl.)Nos.8164-8166/2021 (Mohd. Arbaz & Ors. v. State of
NCT of Delhi) on 13.12.2021, (ii) SLP (Crl.) No.12200/2023 (Pankaj Gupta v.
Narcotic Control Bureau) on 04.12.2023, (iii) SLP (Crl.) No.11628/2022
(Divyas Bardewa v. Narcotics Control Bureau) on 01.05.2023 and (iv) SLP
(Crl.) No.8610/2023 [Arif Khan v. State (Govt. Of NCT of Delhi)] on
28.07.2023.
6. The lead matter on this point is the case of Directorate of Enforcement v.
Manpreet Singh Talwar [SLP(Crl.) No.5724 of 2023] , which is still pending
before a three-Judge Bench of this Court. The case of Mohd. Arbaz (supra)
stands tagged with this matter. There are other orders also passed by this Court
tagging, where similar questions of law are involved. But interim bail has not
been granted in every tagged petition. It has been declined in the cases of
Pabitra Narayan Pradhan v. The State (NGT) of Delhi [SLP (crl.) Diary
No.43791 of 2023], Shankar @ Shiva Maheshwar Savai v. The State of
Gujarat (order dated 03.03.2023 in SLP (Crl.) No.2562/2023) but in none of
these cases, it has been finally determined as to whether failure on the part of
the prosecution to include the FSL report along with the chargesheet in relation
to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985
would automatically entitle the accused to default bail or not. Further, certain
other factors like the quantity of the contraband articles being seized and
period of incarceration were considered in the aforesaid orders while granting
interim bail to the petitioner(s)/applicant(s).
8. In view of there being diversity of views of different Benches of this Court
even on the question of granting interim bail, we are of the opinion that a larger
Bench may decide the question as to whether failure on the part of the
prosecution to include the FSL report pertaining to the seized contraband
article(s) along with the chargesheet, within the time specified in Section
167(2) of the Code read with Section 36A of the NDPS Act, would entitle the
accused to default bail or not.
The factual scenario of the present case is examined in the light of the
aforesaid dictum of law. The final report was submitted alongwith the
chemical analysis report with regard to contraband poppy-straw within
prescribed time. The chemical analysis report with regard to other
contraband MD(Mephedrone) submitted subsequently does render the final
report illegal. The applicant is in custody since 05.08.2024. The complicity
of applicant in alleged offence is prima facie made out from material on
record. Considering the interdict contained u/S 37 of the NDPS Act and the
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gravity of alleged offence, the custody of the applicant cannot be treated as
inappropriately long. The trial is underway.
In view of the afore-stated facts, this Court is of the considered
opinion that the applicant does not deserve to be extended benefit of bail.
The bail application stands dismissed accordingly.
(SANJEEV S KALGAONKAR)
JUDGE
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