Sarukh @ Sarukh Alli Khan vs State Of Odisha
2023 Latest Caselaw 10945 Ori

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              IN THE HIGH COURT OF ORISSA AT CUTTACK

                                BLAPL No.2617 of 2023

           Sarukh @ Sarukh Alli Khan          ....                  Petitioner


                                        -versus-

           State of Odisha                    ....              Opposite Party


                      For Petitioner : Mr. C. Samantaray, Advocate
                      For Opposite Party : Mr. K.K Gaya, ASC

              CORAM: JUSTICE V. NARASINGH
                               Date of hearing : 29.08.2023

                               Date of judgment:08.09.2023

V. Narasingh, J.

1. Heard Mr. Samantaray, learned counsel for the Petitioner and Mr. Gaya, learned Addl. Standing Counsel.

2. The Petitioner is an accused in connection with T.R No.329 of 2022 pending on the file of learned 5th Addl. Sessions Judge, Bhubaneswar, arising out of Laxmisagar P.S. Case No.295 of 2022 for commission of the alleged offence under Section 21(C) of the N.D.P.S Act.

3. Being aggrieved by the rejection of his application for bail U/s. 439 Cr.P.C. by the learned 5th Addl. Sessions Judge, Bhubaneswar by order dated 22.02.2023, the present BLAPL has been filed.

4. It is the case of the prosecution that on the basis of a report lodged on 20.08.2022 by S.I of Police, Laxmisagar Police Station regarding unknown drug suppliers from Balasore trying to deliver huge quantity of

BLAPL No.2617 of 2023 drugs to the drug peddlers in Khandagiri and Nayapali area, action in terms of N.D.P.S. Act was initiated and the Petitioner was apprehended, after due compliance of the statutory provision of the N.D.P.S. Act, along with 254 grams of Brown Sugar.

5. It is stated by the learned counsel Mr. Samantaray, that the Petitioner is in custody since 20.08.2022 and in the meanwhile some of the co-accused persons have already been released on bail. Therefore, the Petitioner seeks release, inter alia, on the ground of parity.

6. It is the further submission of the learned counsel for the Petitioner that admittedly by the time of filing of the preliminary charge sheet, keeping the investigation open under Section 173(8) Cr.P.C., the prosecution was not in possession of chemical examination report. Hence, the Petitioner is entitled to be released on bail as there is no definiteness that the contraband is Brown Sugar.

7. It is also stated that the Petitioner is entitled to be released on bail in terms of Section 167(2) Cr.P.C read with Section 36-A (4) of the N.D.P.S Act.

8. To fortify his submission learned counsel for the Petitioner Mr. Samantaray relied on the judgments in the case of Sk. Eimat @ Bidhia Vrs. State of Orissa, 2022 (III) ILR Cut. 915, Sunil Vasantrao Phulbande Vrs. State of Maharashtra, 2002 (3) MHLJ 689, Tarlok & others Vrs. State of Haryana, 2019 (3) RCR (Crl.) 348 and Achpal @ Ramswaroop & antoher vrs. State of Rajasthan, 2018 CLR 961 (SC).

9. Learned counsel for the State Mr. Gaya opposes the prayer for bail and submits that since in the meanwhile chemical examination report has been received; during pendency of this bail application, there is no

BLAPL No.2617 of 2023 substance in the submission of the learned counsel for the Petitioner to be released on default bail. He also opposes the prayer for release on regular bail relying on the bar contained in Section 37(1) of the N.D.P.S Act.

10. So far as release of the other co-accused are concerned, it is stated that since there has been no recovery of the alleged contraband from the possession of the said co-accused and they were implicated on the basis of Petitioner's statement as accused, the Petitioner is ex facie not similarly circumstanced.

11. In this context, learned counsel for the State relies on the judgment of the apex Court in the case of Satender Kumar Antil vrs. Central Bureau of Investigation & another, 2022 (10) SCC 51, more particularly Para-71 thereof, extracted hereunder:

"71. Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation. Persons accused with same offense shall never be treated differently either by the same court or by the same or different courts. Such an action though by an exercise of discretion despite being a judicial one would be a grave affront to Articles 14 and 15 of the Constitution of India."

12. It is apt to note here that the plea of non-submission of chemical examination report was also noted by the learned Special Judge.

13. In the case at hand admittedly chemical examination report did not form part of the charge sheet. It is the submission of the learned counsel for the State that the preliminary charge sheet against the co-accused persons including the present Petitioner was submitted keeping the investigation open under Section 173(8) Cr.P.C.

14. In this context, it is apt to refer to the judgment of the apex Court in the case of Central Bureau of Investigation vrs. R.S. Pai, (2002)

BLAPL No.2617 of 2023 5 SCC 82 wherein referring to the power that has been vested with the authority under Section 173 (8) Cr.P.C., the apex Court held that "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".

15. The view of the Full Bench of the Punjab and Haryana High Court in the case of State of Haryana vrs. Mehal Singh, 1978 Criminal Law Journal 1810 to the same effect is also extracted hereunder for convenience of ready reference:

"16-A. So far as the investigation part of the job of the investigating officer is concerned, it is in our opinion complete the moment he had collected all evidence and facts that are detailed in sub-section (2) of S. 173 of the Code 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 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.

17. In the new Code the incorporation of sub-section (5) in S.

173 of the Code has in no manner changed or affected the content or concept of the 'police report' envisaged in the unamended Code in sub-section (1) of S. 173 and, therefore, the ratio of Tara Singh's case (AIR 1951 SC 441) (supra) applies to the facts of the present case with full force. The incorporation of sub-section (5) of S.173 of the amended Code was necessitated by the fact that under S.207 of the amended Code a duty was cast additionally on the Magistrate to make available to the accused free of cost copies of the 'police report' and, inter alia, the documents and statements referred to in sub-section (5) of S.173 of the Code. In the unamended Code sub-section (4) of S. 173 cast that duty on the police. The object of such provisions, whether the duty is cast on the police or on the

BLAPL No.2617 of 2023 Magistrate, is merely to see that the accused has in his hand the copies of statements and documents which were going to be produced or referred to in evidence against him so that he can offer whatever explanation or defence that he has to the incriminating material against him. If such statements and documents that are referred to in sub-section (5) of S.173 of the Code are not appended to the 'police report', the result would be that at a later stage if they are sought to be produced, then apart from the fact that copies of such statements and documents shall have to be made available to the accused, it would be purely in the discretion of the Magistrate whether to allow such documents and statements to be produced or not and the prosecution cannot, as a matter of right, have them placed on the record. About this aspect a little more at an appropriate place in the later part of the judgment."

15-A. On an analysis of the provision under Section 173(8) Cr.P.C it has been categorically stated that mere non filing of the documents could not vitiate the charge sheet and consequentially it cannot be said that the accused has a right to claim to be released on bail.

16. It would be apposite to state that the judgment of this Court relied upon by the learned counsel for the Petitioner in the case of S.K. Eimat @ Bidhia (supra) wherein this Court dealt with the self-same question which arises in the case at hand that "the preliminary charge sheet though filed but is incomplete, since it is not accompanied with a Chemical Examination Report and hence, he entitled to default bail. However, the learned Special Judge, Balasore rejected the plea of the petitioner by the impugned order dated 15th July, 2021."

17. As stated, cognizance of the offence under the N.D.P.S Act was taken in terms of the preliminary charge sheet and in the meanwhile as noted chemical examination report has already been filed and keeping in view the dictum of the apex Court in the case R.S. Pai (supra) wherein on

BLAPL No.2617 of 2023 an analysis of the provision of Section 173 Cr.P.C dealing with the report of Police Officer on completion of investigation it has been held that the word 'shall' appearing in Section 173(5) Cr.P.C. cannot be interpreted "as mandatory but as directory". To appreciate the judgment of the apex Court it would be convenient to extract the provision of Section 173(5) and (8) Cr.P.C.

"173. Report of police officer on completion of investigation xxx xxx xxx (5) When such report is in respect of a case to which section 170 applies, the police officer shall 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 investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

xxx xxx xxx (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)." (Emphasized)

18. On a bare reading of the provisions contained in Section 173(8) Cr.P.C. which starts with a non-obstante clause it can be seen that same authorizes a police officer obtaining "further evidence, oral or documentary" during further investigation to be forwarded to the Magistrate

BLAPL No.2617 of 2023 in the form prescribed and the provision of sub-section (2) to (6) of Section 173 Cr.P.C shall apply in respect of such report.

19. In this context, it would also be appropriate to restate the law as laid down in the case of R.S. Pai (supra) more particularly paragraph-7 thereof.

"7. From the aforesaid sub-sections, it is apparent that normally, the Investigating Officer is required to produce all the relevant documents at the time of submitting the charge sheet. At the same time, as there is no specific prohibition, 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. In our view, considering the preliminary stage of prosecution and the context in which Police Officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which prosecution proposes to rely; 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. Analogous provision under S.173(4) of the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao v. State of Andhra Pradesh (1958) SCR 283 at 293) and it was held that the word 'shall' occurring in sub-section (4) of S.173 and sub-section (3) of S.207-A is not mandatory but only directory. Further, the scheme of sub-section (8) of S.173 also makes it abundantly 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.

Hence, the impugned order passed by the Special Court cannot be sustained." (Emphasized)

BLAPL No.2617 of 2023

20. So far as judgments relied on by the learned counsel for the Petitioner are concerned, the judgment of Sk. Eimat @ Bidhia (supra) cannot be of any assistance to the Petitioner. In the factual backdrop of the said case, this Court came to the finding that the claim of the Petitioner for default bail does not merit consideration and his claim for regular bail has to be considered on its own merit.

21. I am in respectful agreement with the view taken by the Coordinate Bench on this aspect. But at the cost of repetition it is reiterated that reliance on the said judgment by the learned counsel for the Petitioner is misconceived.

22. In the case of Sunil Vasantrao Phulbande (supra), the Bombay High Court (Nagpur Bench) held that in the absence of Chemical Analyser's report charge sheet cannot be treated as charge sheet contemplated under Section 173(5) Cr.P.C. and consequently directed the Appellant therein to be released on default bail.

23. In the case of Tarlok (supra), the Punjab and Haryana High Court directed the accused to be released on default bail as charge sheet filed was considered to be "incomplete challan" since FSL report was not submitted along with the same. It was held that the accused has an indefeasible right to be released on bail and accordingly the accused was directed to be released on bail.

24. This Court cannot persuade itself to concur with the aforesaid judgments in the case Sunil Vasantrao Phulbande (supra) and Tarlok (supra) since while rendering the said judgments, the decision of the Apex Court in the case R.S. Pai (supra), was not brought to the kind notice of the respective High Courts.

BLAPL No.2617 of 2023 Hence, the said judgments, in the considered view of this Court, are of no assistance to the Petitioner.

25. So far as the judgment passed in Achpal @ Ramswaropp (supra) is concerned, the facts are completely at variance with the case at hand. In this context, it would be appropriate to extract paragraph-18 of the said judgment.

"18. In the present case as on the 90th day, there were no papers or the charge-sheet in terms of Section 173 of the Code for the concerned Magistrate to assess the situation whether on merits the accused was required to be remanded to further custody. Though the charge-sheet in terms of Section 173 came to be filed on 05.07.2018, such filing not being in terms of the order passed by the High Court on 03.07.2018, the papers were returned to the Investigating Officer. Perhaps it would have been better if the Public Prosecutor had informed the High Court on 03.07.2018 itself that the period for completing the investigation was coming to a close. He could also have submitted that the papers relating to investigation be filed within the time prescribed and a call could thereafter be taken by the Superior Gazetted Officer whether the matter required further investigation in terms of Section 173(8) of the Code or not. That would have been an ideal situation. But we have to consider the actual effect of the circumstances that got unfolded. The fact of the matter is that as on completion of 90 days of prescribed period under Section 167 of the Code there were no papers of investigation before the concerned Magistrate. The accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the concerned Magistrate and they could not be simply remanded to custody dehors such consideration. In our considered view the submission advanced by Mr. Dave, learned Advocate therefore has to be accepted.

We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the

BLAPL No.2617 of 2023 Terrorist and Disruptive Activities (Prevention) Act, 1985 and Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period. In any event of the matter all that the High Court had recorded in its order dated 03.07.2018 was the submission that the investigation would be completed within two months by a Gazetted Police Officer. The order does not indicate that it was brought to the notice of the High Court that the period for completing the investigation was coming to an end. Mere recording of submission of the Public Prosecutor could not be taken to be an order granting extension. We thus reject the submissions in that behalf advanced by the learned Counsel for the State and the complainant.

In our considered view the accused having shown their willingness to be admitted to the benefits of bail and having filed an appropriate application, an indefeasible right did accrue in their favour."

25-A. On a bare reading of the said judgment, it is clear that unlike in the facts of the present case, in Achpal @ Ramswaroop (supra), the Apex Court came to a finding that on expiry of the stipulated period there was no charge sheet before the Court so as to enable it to take cognizance of the offence.

25-B. This Court is of the considered view that the law laid down in Achpal @ Ramswaroop (supra) has no application in the factual matrix of the case at hand.

26. On a conspectus of the materials on record, this Court does not find any merit in the submission of the learned counsel that the Petitioner is entitled to be released on "default bail".

BLAPL No.2617 of 2023

27. As regards the claim of the Petitioner to be released on bail in terms of Section 439 Cr.P.C, in view of seizure of 254 grams of Brown Sugar from the conscious and exclusive possession which is more than the commercial quantity, keeping in view the rigors of Section 37(1) of the N.D.P.S Act, this Court is not inclined to direct his release. And, so far as release of the co-accused and claim of parity is concerned, ex facie the Petitioner is not similarly placed as the seizure was from his conscious and exclusive possession.

28. The BLAPL is rejected.

29. It is needless to state that the observations made herein are only for the purpose of consideration of the Petitioner's claim for default as well as bail under Section 439 Cr.P.C. and ought not to be construed as expressing any view regarding his complicity which has to be adjudicated in an independent manner in the impeding trial and while considering the same, this Court has no iota of doubt that the learned Special Judge would take into account all aspects, including non-submission of chemical examination report at the time of submission of preliminary charge sheet.

(V. NARASINGH) Judge

Orissa High Court, Cuttack Dated the 8th September, 2023/ Pradeep

Signature Not Verified Digitally Signed Signed by: PRADEEP KUMAR SWAIN Reason: Authentication Location: Orissa High Court, Cuttack Date: 11-Sep-2023 20:18:44

BLAPL No.2617 of 2023