Punjab-Haryana High Court
Bhim Sain vs State Of Haryana on 28 October, 2021
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
119 CRR-1300-2021 (O&M)
DATE OF DECISION: 28.10.2021
BHIM SAIN ... Petitioner(s)
Versus
STATE OF HARYANA ... Respondent(s)
CORAM: HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL
Present: Mr. V.B. Godara, Advocate for the petitioner.
Ms. Aditi Girdhar, AAG, Haryana.
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ANUPINDER SINGH GREWAL, J. (ORAL)
The petitioner is seeking default bail in FIR No.602 dated
22.12.2020, under Section 20(b) of the NDPS Act, registered at Police
Station City, Fatehabad.
Learned counsel for the petitioner contends that the challan had
been filed in the instant case on 11.02.2021 without the FSL report, and
therefore, he would be entitled to default bail in terms of Section 167(2)
Cr.P.C. He has placed reliance on the judgments of the Division bench of
this court in the case of Ajit Singh @ Jeeta and another Vs. State of
Punjab, CRR No.4659 of 2015 and State of Haryana Vs. Dildar Ram @
Dari, CRM-M-25600-2021, decided on 15.07.2021.
Learned State counsel upon instructions states
that FSL report has not been filed till date. He, however, contends that
challan filed without even FSL report would be a complete challan. In
support of his submission, he has cited the judgments of the Supreme Court
in the cases of Narendra Kumar Amin Vs. CBI, 2015 (1) RCR
(Criminal) 566 and Abdul Azeez P.V. Vs. NIA, 2014 (3) ACR 3335, Full
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Bench of this court in State of Haryana Vs. Mehal Singh and others,
1978, PLR 480, and the judgments passed by the coordinate benches of this
court in Rahul Vs. State of Punjab, CRR No.1016-2020, decided on
21.12.2020, Azuka Vs. State of UT, Chandigarh, CRR-765-2020, decided
on 13.03.2020, Shankar Vs. State of Haryana, CRM-M-44412-2019,
decided on 20.12.2019 and Akash Kumar @ Sunny Vs. State of
Haryana, CRR No.1731-2019 decided on 16.10.2019.
Heard.
The FIR was registered against the petitioner on 22.12.2020 on
the allegations that 1kg 600 grams of 'ganja' was recovered from the
petitioner. The challan is stated to have been filed on 11.02.2021. The FSL
had not been filed along with the challan. The petitioner had sought bail
from the Sessions court in terms of Section 167(2) Cr.P.C. but his
application was dismissed on 11.10.2021. This court in the case of State of
Haryana Vs. Dildar Ram @ Dari (supra) had held that filing of the
challan without FSL report would not be regarded as a complete challan and,
therefore, the accused would be entitled to default bail in terms of Section
167(2) Cr.P.C.
The specific question with regard to the significance of filing a
challan under Section 173(2) Cr.P.C. without the FSL report in a case under
the NDPS Act had been referred to a Division Bench of this court. The
Division Bench of this court in the case of Ajit Singh @ Jeeta and another
Vs. State of Punjab (supra) held that the report of the FSL with regard to
the nature of the recovered substance would go to the root of the matter and,
therefore, a challan filed without the FSL report with regard to the nature of
the substance would be an incomplete challan and would not satisfy the
requirement envisaged under Section 167(2) Cr.P.C. The accused, in such
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circumstances, would be entitled to be released on default bail. The relevant
extract of the judgment is reproduced hereunder:-
"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."
The judgments of the Supreme court and Full bench of this
court which are cited by the learned counsel for the State are distinguishable
on facts from the instant case. The judgment of the Supreme court in the
case of Narendra Kumar Amin Vs. CBI (supra) did not pertain to a case
under the NDPS Act. In that case, complete set of documents had not been
filed along with the challan and it was in such circumstances it was held that
merely because these documents were not filed, the accused would not have
right to be released on default bail. In the case of Abdul Azeez P.V. Vs.
NIA (supra), although challan had been filed but foreign bank transaction
details were yet to be collected and call data records had to be analysed and,
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therefore, further investigation was sought. It was not a case under the
NDPS Act.
The Full Bench of this court in the case of State of Haryana
Vs. Mehal Singh and others, 1978, PLR 480, decided on 12.04.1978, had
held that the challan without the report of experts including chemical
examiner, serologist, ballistic and finger print expert would be considered to
be a complete challan for the purposes of deciding concession of default bail
under Section 167(2) Cr.P.C. This case also did not pertain to an offence
under the NDPS Act and, therefore, it would not be applicable to the facts of
this case.
The judgment of the Full Bench in State of Haryana Vs.
Mehal Singh and others (supra) has also been distinguished by the
Division Bench in the case of Ajit Singh @ Jeeta and another Vs. State of
Punjab (supra). It was held by the Division Bench that the Full Bench was
interpreting the provisions and scope of Cr.P.C. in the backdrop of general
offences pertaining to IPC and other statutes but was not seized of the NDPS
Act.
Subsequently, the coordinate Benches of this court in the cases
of Rahul Vs. State of Punjab, CRR No.1016-2020, decided on
21.12.2020, Azuka Vs. State of UT, Chandigarh, CRR-765-2020, decided
on 13.03.2020, Shankar Vs. State of Haryana, CRM-M-44412-2019,
decided on 20.12.2019 and Akash Kumar @ Sunny Vs. State of
Haryana, CRR No.1731-2019 decided on 16.10.2019, had held that the
challan under Section 173(2) Cr.P.C. having been filed even without the
FSL report would not entitle the accused to be released on default bail under
Section 167(2) Cr.P.C. However, different view had been taken by the
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coordinate benches and the coordinate Bench of this court in the case titled
Julfkar Vs. State of Haryana, CRR-1125-2020 had referred the matter to
the division bench in view of the conflict in judgments. It was also observed
by a coordinate Bench in CRR-1135-2020, Suresh Vs. State of Haryana,
decided on 18.11.2020, while granting default bail to petitioner therein as
challan was filed without FSL report, that in the event of the division bench
opining that the challan filed without FSL report would be a complete
challan, the State would be at liberty to prefer an application for cancellation
of bail.
Another coordinate Bench of this court in CRR-1150-2020,
titled Rinku Vs. State of Haryana vide order dated 03.11.2020, had also
opined that as the matter had been referred to the larger bench, in the
meantime, the accused would be entitled to be released on default bail.
This court, in the case of State of Haryana Vs. Dildar Ram @
Dari (supra) has held that challan filed without FSL report would not be
regarded as a complete challan and the accused would be entitled to default
bail in terms of Section 167(2) Cr.P.C.
Therefore, as the challan had been filed without the FSL report
in the instant case, the petitioner would be entitled to be released on default
bail in terms of Section 167(2) Cr.P.C.
In view of the above, without expressing any opinion on the
merits of the case, the instant petition is allowed. The petitioner is ordered to
be released on default bail on his furnishing requisite bonds to the
satisfaction of the trial Court/Duty Magistrate concerned.
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In the event of the division bench opining that the challan filed
without FSL report would be a complete challan, the State would be at
liberty to prefer an application for cancellation of bail.
28.10.2021 (ANUPINDER SINGH GREWAL)
SwarnjitS JUDGE
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No
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