Punjab-Haryana High Court
Gurpreet Kaur vs State Of Haryana on 6 December, 2022
In the High Court for the States of Punjab and Haryana
At Chandigarh
CRR-682-2021 (O&M)
Date of Decision:-6.12.2022
Gurpreet Kaur ... Petitioner
Versus
State of Haryana ... Respondent
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
Present:- Mr. D.N. Ganeriwala, Advocate for the petitioner.
Mr. Rajiv Sidhu, DAG, Haryana.
*****
GURVINDER SINGH GILL, J.(Oral)
1. The present revision petition is directed against the order dated 05.07.2021
passed by learned Additional Sessions Judge, Sirsa, vide which an
application filed by the petitioner seeking his release in terms of provisions
of Section 167(2) Cr.P.C., has been declined.
2. The allegations, in nutshell, against the petitioner are to the effect that on
30.12.2020 she was found in possession of 980 tablets of 'tramadol', which
undisputedly is 'commercial' quantity.
3. Learned counsel for the petitioner has submitted that although the
Investigating Agency had presented challan on 01.03.2021 i.e. within 60
days from the date she was remanded to police custody but the said challan
was incomplete inasmuch as the same was not accompanied by the report of
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(2) CRR-682-2021 (O&M)
FSL. It has been submitted that it was infact on 05.08.2022 i.e. much after
even 180 days that the report of FSL was submitted in the Court by the
prosecution.
4. The learned counsel has submitted that since there has been some conflict in
judgments of this Court as regards the issue in hand i.e. as to whether a
challan which is not accompanied by a report of FSL in a case registered for
offence under the NDPS Act, 1985 can be said to be a complete challan or
not, the matter has been referred to a larger Bench vide order dated 16.9.2020
passed in 2020 (4) Law Herald 3188 Julfkar Vs. State of Haryana [CRR-
1125-2020] to consider as to whether a challan filed without report of FSL
would be an incomplete challan.
5. The State counsel has not disputed that the aforesaid matter stands referred to
a Division Bench and is still subjudice. In this context a reference may also
be made to an order of Hon'ble Supreme Court passed on 9.11.2022 in
Special Leave to Appeal (Crl.) Nos. 8164-8166/2021 titled as Mohd. Arbaz
and others Versus State of NCT of Delhi which has been cited by learned
counsel for petitioner to contend that the matter as regards the challan in
NDPS cases being incomplete on account of absence of FSL report is also
being adjudicated by Hon'ble Apex Court. The said order dated 9.11.2022 of
Hon'ble Supreme Court in Mohd. Arbaz's case reads as follows :-
"In all these petitions the question that arises for consideration is relating to
the completeness of the charge sheet in accordance with law if the same is
filed without the CFSL Report. The matter would require detailed
consideration. In the meantime, all parties to complete their pleadings.
For the present, though the issue of default bail is to be considered in the
petitions since it would require some time, without reference to that aspect of
the matter, keeping in view that the petitioners in SLP(Crl.) Nos. 6876-
6877/2022, SLP (Crl.) No. 532/2022 and SLP (Crl.)No. 5190/2022 are still in
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custody, we order that they be released on bail subject to the conditions to be
imposed by the concerned trial courts.
While indicating so we also take note of the objection put forth by learned
counsel for the respondent-State in SLP(Crl.) No.2666/2022 who objects to
the grant of bail since the petitioner therein has not surrendered despite the bail
being cancelled by the High Court. Though in a normal circumstances we
would have taken a serious view of the matter, keeping in view the fact that
the petitioner has approached this Court immediately after cancellation of the
bail and the petition has been tagged alongwith similar matters and could not
be taken up, we allow the benefit of bail to the petitioner. Hence, the order
cancelling bail which is impugned in SLP (Crl.) No. 2666/2022 shall remain
stayed. List all these petitions on 17.01.2023."
(emphasis supplied)
6. In view of the undisputed fact that challan was not accompanied by report of
FSL, which was filed much later and Hon'ble Supreme Court is seized of
similar matter and has ordered for release of accused on bail in those cases,
this Court deem appropriate to extend the concession of bail in terms of
Section 167(2) Cr.P.C. to the petitioner while also keeping in view the fact
that the petitioner has been behind bars since the last almost 2 years.
7. The petition, as such, is accepted. The impugned order is accordingly set
aside and the petitioner is ordered to be released on bail on her furnishing
bail bonds/surety bonds to the satisfaction of learned trial Court/Chief
Judicial Magistrate/Duty Magistrate concerned.
8. It is, however, clarified that the prosecution would be at liberty to move for
cancellation of bail/recall of this order in case the reference made to larger
Bench in Julfkar's case (supra) is answered in favour of prosecution or in
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(4) CRR-682-2021 (O&M)
case, the matter pending in Hon'ble Supreme Court i.e. Mohd. Arbaz's case
(supra) is decided in favour of prosecution.
6.12.2022 ( Gurvinder Singh Gill )
pankaj Judge
Whether speaking /reasoned Yes / No
Whether Reportable Yes / No
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