Punjab-Haryana High Court
Sagar Kumar vs State Of Haryana on 12 March, 2024
Author: Manjari Nehru Kaul
Bench: Manjari Nehru Kaul
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
2024:PHHC:034555
1. CRR-15-2024 (O&M)
Date of decision: March 12th, 2024
Sagar Kumar
.....Petitioner
Versus
State of Haryana
.....Respondent
2. CRM-M-319-2024
Sagar Kumar
.....Petitioner
Versus
State of Haryana
.....Respondent
CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL
Argued by: Mr. Aditya Sanghi, Advocate
for the petitioner.
Mr. Rajesh Gaur, Additional Advocate General, Haryana.
MANJARI NEHRU KAUL, J.
This order shall dispose of the above-mentioned petitions
as they arise out of same FIR i.e. FIR No.90 dated 15.02.2023 registered
under Section 21(C)/29 of The Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') at
Police Station Rania, District Sirsa.
2. Prayer in CRR No.15 of 2024 is for releasing the petitioner
on default bail in the above-mentioned FIR and in
CRM-M No.319 of 2024 is for quashing of order dated 02.08.2023
passed by learned trial Court, whereby application filed by the
prosecution for extension of time to submit challan/final report was
allowed.
3. SUBMISSIONS OF LEARNED COUNSEL FOR THE
PETITIONER:
(i) Learned counsel for the petitioner while impugning the order
dated 02.08.2023 has vehemently contended that he was arrested on
15.12.2023 in the FIR in question (Annexure P-2); the statutory period of
180 days for completion of the investigation under the NDPS Act was thus
to expire on 15.08.2023. However, the investigating agency presented the
challan without the report of the Forensic Science Laboratory (hereinafter
referred to as 'FSL') on 30.11.2023. Subsequently, when the FSL report was
received, it was filed by the prosecution before the learned trial Court on
05.12.2023.
(ii) Learned counsel has further submitted that though the challan
had been presented by the investigating agency after the expiry of the
statutory period of 180 days, however, in the interregnum, an application
dated 31.07.2023 under Section 36A(4) of the NDPS Act was filed by the
prosecution seeking extension of time to complete the investigation, which
was allowed by the trial Court vide impugned order dated 02.08.2023,
wherein the prosecution was granted 110 days' more time to complete the
investigation.
(iii) Learned counsel has vehemently asserted that the
report/application submitted by the Public Prosecution under Section
36A(4) of the NDPS Act did not comply with the conditions provided
under the said section as due application of mind on the part of the Public
Prosecutor was missing; the Public Prosecutor had merely appended his
signatures at the bottom of the page. Neither the progress of investigation
had been detailed by the Public Prosecutor in his report under Section
36A(4) of the NDPS Act nor was any cogent reason given as to why
extension of time to complete investigation was required. Learned counsel
has thus urged that on account of non-compliance of Section 36A(4) of the
NDPS Act, the extension which had been granted by the learned trial Court
to the prosecution was non est. In the circumstances, the petitioner had
become unequivocally entitled to the concession of default bail. In support,
learned counsel has placed reliance upon the judgments of Hon'ble the
Supreme Court in Hitendra Vishnu Thakur and Ors. Versus State of
Maharashtra and Ors. (1994) 4 SCC 602 and Sanjay Kumar Kedia @
Sanjay Kedia v. Intelligence Officer, Narcotic Control Bureau and another,
2010(1) RCR (Criminal) 942.
4. SUBMISSIONS BY LEARNED STATE COUNSEL:
(i) Learned State counsel, on the other hand, has vehemently
opposed the prayer and submissions made by the counsel opposite. It has
been submitted that challan as well as the FSL report were filed within time
as it was a matter of record that the learned trial Court had already
extended the period for investigation by 110 days vide the impugned order.
Furthermore, the trial Court's order could not be said to be arbitrary, rather
it was in consonance with the provisions of law as delineated under Section
36A(4) of the NDPS Act. Learned State counsel has further asserted that
the extension sought to complete investigation by the prosecution was
legally permissible as the learned Public Prosecutor had submitted a
comprehensive report detailing the progress made till that time in the
investigation and thus cogently justifying the A necessity for additional
time.
(ii) Learned State counsel has still further argued that the
extension which had been rightly granted by the learned trial Court was not
merely a procedural formality but was firmly supported by many legal
precedents; the learned trial Court had minutely considered the prayer of
the prosecution as the FSL report had not been received despite repeated
reminders sent by the investigating agency. Learned State counsel has,
therefore, prayed for dismissal of the instant petition.
FINDINGS BY THE COURT:
5. I have heard learned counsel for the parties and perused the
relevant material on record.
6. Before proceeding further, it would be apposite to reproduce
Section 167 (2) of the Cr.P.C. and Section 36A(4) of the NDPS Act, which
read as under:-
"167 (2) The Magistrate to whom an accused person is
forwarded under this section may, whether he has or has
not jurisdiction to try the case, from time to time,
authorise the detention of the accused in such custody as
such Magistrate thinks fit, a term not exceeding fifteen
days in the whole; and if he has no jurisdiction to try the
case or commit it for trial, and considers further detention
unnecessary, he may order the accused to be forwarded to
a Magistrate having such jurisdiction:
Provided that--
(a) the Magistrate may authorise the detention of the
accused person, otherwise than in the custody of the
police, beyond the period of fifteen days, if he is satisfied
that adequate grounds exist for doing so, but no Magistrate
shall authorise the detention of the accused person in
custody under this paragraph for a total period exceeding
-- (i) ninety days, where the investigation relates to an
offence punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other
offence, and, on the expiry of the said period of ninety
days, or sixty days, as the case may be, the accused person
shall be released on bail if he is prepared to and does
furnish bail, and every person released on bail under this
sub-section shall be deemed to be to released under the
provisions of Chapter XXXIII for the purposes of that
Chapter;]
(b) no Magistrate shall authorise detention in any custody
under this section unless the accused is produced before
him;
(c) no Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall
authorise detention in the custody of the police.
36A (4) In respect of persons accused of an offence
punishable under section 19 or section 24 or section 27A
or for offences involving commercial quantity the
references in sub-section (2) of section 167 of the Code of
Criminal Procedure, 1973 (2 of 1974), thereof to "ninety
days", where they occur, shall be construed as reference to
"one hundred and eighty days": Provided that, if it is not
possible to complete the investigation within the said
period of one hundred and eighty days, the Special Court
may extend the said period up to one year on the report of
the Public Prosecutor indicating the progress of the
investigation and the specific reasons for the detention of
the accused beyond the said period of one hundred and
eighty days."
7. A conjoint reading and interpretation of the above reproduced
provisions unequivocally provide that if upon expiry of the prescribed 180
days period, the investigation remains incomplete, the accused would be
entitled to default bail under Section 167 (2) of the Cr.P.C. Investigation
would necessarily mean proceedings undertaken by the investigating
agency for collection of material to facilitate the Magistrate in ascertaining
whether an offence has been committed or not. Additionally, in cases under
the NDPS Act, the investigation cannot be complete unless the FSL report
PUNEET SACHDEVA is annexed with the challan. The FSL report in NDPS cases is pivotal in
determining the nature of the substances recovered from the accused. In the
absence of a definite opinion from the Chemical Examiner, mere sensory
observation such as smell, sight etc. of the alleged recoveries by the
investigating agency would not be sufficient to conclusively establish their
nature. Moreover, without the FSL report being part of the challan, the
learned Court would be handicapped to proceed further and take
cognizance of the offences under the NDPS Act.
8. Furthermore, extension of the period of investigation
permissible under the NDPS Act, provided that the conditions outlined in
Section 36A(4) of the NDPS Act are adhered to. In short, the interplay
between Section 36A(4) of the NDPS Act and Section 167 (2) of the
Cr.P.C. reflects the intent of the legislature to strike a balance between the
need for thorough investigations in serious drug related offences and the
protection of the right of the accused. These provisions thus, establish a
robust framework aimed at ensuring fairness. transparency, efficiency in
the investigation and adjudication of such cases.
9. Adverting to the present case, the petitioner was arrested on
15.12.2023 and the statutory period of 180 days was set to expire on
15.08.2023. It is matter of record that prior to the expiry of this deadline,
that is, on 15.08.2023 the Public Prosecutor had already submitted an
application/report seeking extension of time to complete investigation on
31.07.2023; the learned trial Court vide the impugned order granted
extension of time of 110 days on 02.08.2023. The challan and the FSL
report were subsequently filed before the learned trial Court on 30.11.2023
and 05.12.2023 respectively.
10. Learned counsel for the petitioner has vehemently argued that
the report of the Public Prosecutor in the instant case was not in
consonance with the provisions of Section 36A(4) of the NDPS Act, as it
did not detail the progress of the investigation or even provide any reasons
for seeking an extension for presentation of challan.
11. Thus, the moot question which arises for the consideration of
was this Court is whether the report of the Public Prosecutor was in
consonance with the conditions stipulated under Section 36A(4) of the
NDPS Act or not.
12. For facility of reference, the report made by the learned Public
Prosecution under Section 36A(4) of the NDPS Act is reproduced
hereinunder:-
"Report Under Section 36A(4) NDPS Act in case FIR
No. 90 dated 15.02.2023 U/g 21-C,29,61/85 NDPS Act
Police Station Rania.
As per the facts of ease file produced on 26-07-2023 by
10 Shri Sandeep Kumar (210) No. 941 on 15-02-2023
SI Data Ram recovered 259 Grams Heroin (Chitta) from
possession of Sagar alias Chinna. During investigation it
was revealed that the recovered 259 gram Heroine
(Chitta) was got purchased from other accused persons
namely Samsung Nigerian.
In this regard, sample parcels were taken out at the time
of inventory attestation before Id. Halqa Magistrate and
sent to Regional Forensic Science Laboratory Hisar on
dated 24-02-2023 and same was deposited there on
27-02-2023 for chemical analysis, but report in this
regard is still awaited. According to investigation file IO
has made request for obtaining analysis report through
telephone message and in this regard a letter vide letters
numbers 24323 dated 27-06-2023 was sent to Director
Regional Forensic Science laboratory Hisar by
Superintend of Police Sirsa. (Copy of this letter is
attached herewith as annexure A1)". But analysis result
is still awaited. The Assistant Director cum Incharge
RFSL. Hisar has intimated vide memo No. 1280 dated
07-07-2023 report wanted to prepare up to 29-11-2023.
ADO letter bearing No. 28004 dated 26-07-2023 was
also been sent by W.SP Sirsa for speedy disposal.
After going through the case file and above mentioned
correspondence, as far as investigation on any pending
aspect, same can be completed later on and
supplementary challan can be filed in the court in this
regard if permitted by Hon'ble Court: However, in the
present case result of chemical analysis of the sample
parcels, sent by IO to RFSL Hisar is still pending and
challan/report under section 173 is incomplete without
FSL Report. This issue has been held by Hon'ble Higher
Courts in cases and recently Hon'ble Punjab & Haryana
High Court, after relying upon the case Jagwinder Singh
Vs. State of Haryana, Ajaib Singh Vs. State of Haryana
along with Hon'ble Supreme Court's Judgment in
Mohmmad Arbaj Vs. State of NCT Delhi held that FSL
report goes to the route of case and is material
document, filling of challan without the same is not be
treated as complete challan.
In view of the above mentioned facts and in
absence of FSL report, investigation in present case is
incomplete so application of investigation Officer for
extention of time for maximum period provide by
provisions of NDPS Act to complete investigation, may
kindly be allowed.
Submitted Please".
13. A perusal of the Public Prosecutor's report reveals that despite
repeated requests made by the Investigating Officer of the instant case, the
FSL report was not received from the FSL. The argument of the learned
counsel for the petitioner that the Public Prosecutor did not apply his mind
independently while approaching the learned trial Court under Section
36A(4) of the NDPS Act lacks merit as the report extensively outlines the
progress of the investigation and also provides specific reasons for seeking
extension of time, notably citing non-receipt/absence of the FSL report.
Since the FSL report is a crucial document to determine the nature of the
recovered substance, challan presented without it would be deemed
incomplete.
14. Furthermore, the report submitted by the learned Public clearly
Prosecutor before the trial Court clearly demonstrates that earnest efforts
were made by the investigating agency including telephonic requests to the
RFSL to expedite the preparation and the despatch of the Shill further in
this regard of the FSL. Still further, it is also a matter of record that in this
regard, a written request vide letter No.24323 dated 27.06.2023 was sent to
Director, RFSL, Hisar, by the Superintendent of Police, Sirsa. Besides a
letter bearing No.28004 dated 26.07.2023 had also been sent by the
Superintendent of Police, Sirsa, asking for speedy despatch of the FSL
report of the present case.
15. Thus, the delay, if any, in presenting the challan cannot be
attributed to the investigating agency. Since the FSL report was not
received within the stipulated period despite earnest efforts of the
investigating agency, the investigating agency was left with no other resort
but to seek extension of time to complete investigation. This Court in the
aforementioned circumstances, does not find any infirmity in the order
dated 02.08.2023 passed by the learned trial Court vide which the
extension of time to complete the investigation has been granted to the
prosecution. Consequently, the challan as well as the FSL report are
deemed to be filed by the investigating agency within the statutory period,
thus, no right under Section 167 (2) of the Cr.P.C. accrued to the petitioner
on 11.10.2023 when he filed his application for default bail before the
Court below.
16. The petitions, therefore, stand dismissed.
March 12th, 2024 (MANJARI NEHRU KAUL)
Puneet JUDGE
Whether speaking/reasoned : Yes
Whether reportable : No
