THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Revisional Jurisdiction)
DATED : 29th November, 2022
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.Rev.P. No.04 of 2022
Petitioner : Anwar Alam
versus
Respondent : State of Sikkim
Application under Sections 397 and 401 read with
Section 482 of the Code of Criminal Procedure, 1973
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Appearance
Mr. Shrawan Kumar Prasad, Advocate for the Petitioner.
Mr. S. K. Chettri, Additional Public Prosecutor for the State-
Respondent.
SI Sun Tshering Lepcha, Investigating Officer present in person.
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ORDER
Meenakshi Madan Rai, J.
1. The Order of the Learned Special Judge, SADA, 2006,
Gangtok, Sikkim, dated 01-10-2022, in Criminal Misc. Case (SADA)
Bail No.113 of 2022 (Anwar Alam vs. State of Sikkim), is being
assailed, whereby, the Petitioner's prayer for grant of default bail
under Section 167(2) of the Code of Criminal Procedure, 1973
(hereinafter, "Cr.P.C.") was rejected.
2. On 31-05-2022, an FIR was lodged before the Learned
Chief Judicial Magistrate, Gangtok District, Sikkim, by the Station
House Officer (SHO), Pakyong Police Station, Sikkim, informing
that, credible source information was received that, the Petitioner,
was in possession of controlled substances in his rented room at
Pakyong. The SHO along with duty personnel and two independent
witnesses conducted a search therein, where the Petitioner and one Crl.Rev.P. No.04 of 2022 2
Anwar Alam vs. State of Sikkim
Amal Sarkar were present. The search led to recovery of twenty-
one bottles of cough syrup (Codeine Phosphate and Chlorpheniramine
Maleate Syrup) and five empty bottles of cough syrup (Codeine
Phosphate and Chlorpheniramine Maleate Syrup/Cetrizine HCL
Dextromethorphan HBR and Phenylephrine HCL Syrup). The Petitioner
was arrested on 31-05-2022 under Section 7 of the Sikkim Anti
Drugs (Amendment) Act, 2017 read with Section 34 of the Indian
Penal Code, 1860 (for short, "IPC") and taken into custody. Amal
Sarkar later was released in terms of Section 169 of the Cr.P.C.
The Final Report under Section 173 of the Cr.P.C. was filed on 27-
07-2022, sans the Chemical Analysis Report, although the
Prosecution had forwarded the recovered articles to the Central
Forensic Science Laboratory (CFSL), Government of India, Kamrup,
Assam, on 18-07-2022.
3. The Appellant filed an application seeking default bail
[Criminal Misc. Case (SADA) Bail No.113 of 2022] before the
Special Court, SADA, 2006, Gangtok, Sikkim, under Section 167(2)
of the Cr.P.C., on the anvil of the contention that an incomplete
Charge-Sheet was filed, which was rejected by the Court, relying
on various decisions of the Delhi High Court, hence this Petition.
4. Learned Counsel for the Petitioner contended that the
Petitioner is entitled to statutory bail under Section 167(2) Cr.P.C.
the Prosecution having failed to submit the complete Charge-Sheet
inclusive of FSL Report within the statutory period of 60 days, from
the date of arrest of the Petitioner. That, the Charge-Sheet filed on
27-07-2022 lacked the FSL Report. That, consequently in the
absence of the FSL Report it is unverified as to whether the
Petitioner can even be booked under the provisions of the Sikkim Crl.Rev.P. No.04 of 2022 3
Anwar Alam vs. State of Sikkim
Anti Drugs Act, 2006 (as amended) [hereinafter, "SADA, 2006"]
the contents of the seized articles not having been established as
controlled substances. Claiming parity with Amal Sarkar who was
released by the Police, it is urged that both of them were present
at the time of search and seizure, but the Petitioner without
evidence, was forwarded to Judicial custody. Relying on the ratio
in M. Ravindran vs. Intelligence Officer, Directorate of Revenue 1 Intelligence , in which the Hon'ble Supreme Court referred to its
earlier decision in Uday Mohanlal Acharya vs. State of Maharashtra2, it
was urged that the personal liberty is one of the cherished objects
of the Indian Constitution and deprivation of the same can only be
in accordance with law, in conformity with the provisions thereof.
That, in Satya Narain Musadi and Others vs. State of Bihar3, the
Hon'ble Supreme Court has held that Section 173(5) of the Cr.P.C.
makes its obligatory upon the Police Officer to forward along with
the report all documents or relevant extracts thereof, on which the
Prosecution proposes to rely and the statements recorded under
Section 161 Cr.P.C., of all the persons whom the Prosecution
proposes to examine as witnesses at the trial. Despite this
observation, the Prosecution has failed to furnish the Forensic
Report of the seized articles. That, in Mohd. Arbaz and Others vs. 4 State of NCT of Delhi filed before the Hon'ble Supreme Court, the
question for consideration pertains to the rights of the accused
under Section 167(2) of the Cr.P.C. in an NDPS case, where the
Challan was filed without CFSL Report. That, pending decision on
the question the Petitioners therein were allowed the benefit of
1 (2021) 2 SCC 485 2 (2001) 5 SCC 453 3 (1980) 3 SCC 152 4 Order dated 09-11-2022 of the Supreme Court in Petitions for Special Leave to Appeal (Crl.) Nos.8164-8166/2021 Crl.Rev.P. No.04 of 2022 4
Anwar Alam vs. State of Sikkim
bail. Urging this Court to take a similar view it was contended that
deprivation of the personal liberty of the accused be considered on
account of the non-filing of the FSL Report. Contending that the
Petitioner is entitled to default bail in light of the above facts,
strength was garnered from a plethora of Judgments, i.e., Ajit
Singh alias Jeeta and Another vs. State of Punjab5; Jiyaur Rahman
Barhuiya vs. State of Manipur represented by the Chief Secretary 6 (Home), Govt. of Manipur and Others ; Inspector of Customs vs. MS
7 Daphira Wallang ; Nishanth C. vs. State of Kerala, Represented by the
8 9 Public Prosecutor and Another ; Babu vs. The State (GNCT of Delhi)
and Mohd. Arbaz vs. State of NCT of Delhi10. That, in the
circumstances enumerated above, the Order of the Learned Special
Judge, SADA, 2006, be set aside and the Petitioner be enlarged on
bail in terms of Section 167(2) of the Cr.P.C.
5. Objecting to the prayers advanced, Learned Additional
Public Prosecutor put forth the arguments that the recovered
controlled substances were in large quantity as defined in Section
2(i) of the SADA, 2006. That, the Petitioner is from Kishanganj,
Bihar. Explaining the non-filing of the Chemical Analysis Report
along with the Charge-Sheet, it was submitted that the concerned
Scientific Officer at the Regional Forensic Science Laboratory,
Government of Sikkim, Saramsa, Ranipool, Gangtok District, had
proceeded on maternity leave from 01-06-2022 and would be on
leave till 30-11-2022. Samples of the controlled substances for
Chemical Analysis were forwarded to the RFSL on 09-06-2022, by
5 Order dated 30-11-2018 of the High Court of Punjab & Haryana in Criminal Revision No.4659 of 2015 6 2019 SCC OnLine Mani 199 7 ILR 2010 Kar 190 8 2021 SCC OnLine Ker 2870 9 Order dated 25-09-2020 of the High Court of Delhi in Bail Appln. No.2075 of 2020 10 Order dated 03-11-2020 of the High Court of Delhi in Crl. Rev. P. No.1219/2019 & Crl.M.A. No.10252/2020 Crl.Rev.P. No.04 of 2022 5
Anwar Alam vs. State of Sikkim
which time the Officer was already on leave. Thereafter, on
receiving the information of such leave, it was again forwarded to
the Central Forensic Science Laboratory, Government of India,
Kamrup, Assam, on 18-07-2022 from where the Report is awaited
and will be filed immediately on receipt. That, merely because the
RFSL Report has not been filed, it does not entitle the Petitioner the
statutory bail in terms of Section 167(2) of the Cr.P.C., as the
Charge-Sheet was filed within the statutory period of sixty days.
To buttress this submission, reliance was placed on Suleman vs. 11 State (NCT of Delhi) . That, Amal Sarkar was released by the Police
in terms of Section 169 Cr.P.C. due to lack of evidence, hence the
Petition be dismissed.
6. The rival contentions of Learned Counsel were heard in
extenso. I have perused the documents annexed to the Petition
and the Judgments/Orders of the various High Courts, the Order of
the Hon'ble Supreme Court in Mohd. Arbaz (supra) relied on by the
Petitioner and the Judgment in Suleman (supra) relied on by
Learned Additional Public Prosecutor.
7(i). For clarity in the matter, the provision of Section
167(2) of the Cr.P.C. is extracted herein below;
"167. Procedure when investigation cannot be completed in twenty four hours.─(1) .......................
(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, for 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,
11 2022 SCC OnLine Del 2346 Crl.Rev.P. No.04 of 2022 6
Anwar Alam vs. State of Sikkim
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 so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
..........................................................................."
(ii) The law extracted above reveals inter alia the terms
with regard to grant of statutory bail. In Ajit Singh (supra) relied
on by the Petitioner, the Division Bench of the Punjab & Haryana
High Court while considering a matter pertaining to non-inclusion of
Chemical Examiner's opinion in the Report under Section 173
Cr.P.C. in an NDPS case, observed inter alia that, non-inclusion of
the Chemical Examiner's opinion in the report under Section 173
Cr.P.C. would expose the accused to unfounded dangers, imperiling
and endangering his liberty, since, the provisions of the of the
Narcotic Drugs and Psychotropic Substances Act, 2012
(hereinafter, "NDPS Act"), is stringent its applicability to a trial and
in its consequence. That, for this reason as well, it was essential
that the Report of the Chemical Examiner be included in the Report
under Section 173 Cr.P.C., without which, it can best be termed to
be an incomplete Challan, depriving the Magistrate of relevant Crl.Rev.P. No.04 of 2022 7
Anwar Alam vs. State of Sikkim
materials to take cognizance. That, if it is not submitted within the
requisite 180 days it would result in default bail to the accused,
unless an application is moved by the Investigating Agency
apprising the Court of the State of investigation, with the prayer for
extension of time to the satisfaction of the Court.
(iii) In Inspector of Customs (supra) also relied on by the
Petitioner, the Karnataka High Court while considering the non-
filing of Charge-Sheet in an NDPS case agreed with the Learned
Trial Court that, the Petitioner therein was entitled to default bail
as no Chemical Analysis Report or Charge-Sheet was filed during
the statutory period.
(iv) In Nishanth C. (supra) an Order of the Kerala High Court
relied on by the Petitioner, the Final Report was filed sans Chemical
Examination Report. The Petitioner who had been in custody for
more than a year was found entitled to statutory bail under Section
36A(4) of the NDPS Act.
(v) In Jiyaur Rahman Barhuiya (supra) adverted to by
Learned Counsel for the Petitioner, the Petitioner therein was
booked under various Sections of the NDPS Act for being in
possession of some psychotropic and controlled substances, in the
vehicle, used by the accused persons including the Petitioner.
Claiming that the statutory period of 180 days as per Section
167(2) of the Cr.P.C. was over, the Petitioner claimed the right to
default bail having been in custody for more than 300 days, and
filed bail applications which were rejected by the Special Judge.
Default Bail was granted by the Single Judge of the High Court on
the non-filing of the Charge-sheet, besides which the Prosecution
admittedly had failed to file an application under Section 36A(4) of Crl.Rev.P. No.04 of 2022 8
Anwar Alam vs. State of Sikkim
the NDPS Act, seeking extension of time as the FSL Report was
awaited.
(vi) In Babu (supra) the Petitioner was found to be in
possession of 50 gms. of Heroin on 06-12-2019. The Charge-
Sheet was not filed till 04-02-2020, hence Petitioner claimed
default bail under Section 167(2) Cr.P.C. Charge-Sheet came to
be filed on 13-02-2020 without the FSL Report. The FSL Report
was submitted on 03-09-2020, by which time the Trial Court had
rejected the Petitioner's application for regular bail on 22-07-2020
and the Petitioner was then before the Delhi High Court. The
matter was heard on 04-09-2020. A distinction was drawn by the
Learned Single Judge between cases relating to offences under the
IPC and NDPS Act for the reason that a Charge-Sheet without an
FSL in an NDPS case would not be able to indicate that the
recovery from the accused was prohibited under the provisions of
NDPS Act. However, considering that the decision of the Division
Bench of the Delhi High Court in Kishan Lal vs. State12 had held that
the Petitioner was not entitled to grant of bail under Section 167(2)
Cr.P.C. when Charge-Sheet was filed unaccompanied by the FSL
Report, the decision was adhered to. Besides, the Court also found
no ground to grant the Petitioner's bail on merits, as the drug
recovered was Heroin and no procedural infirmity had been pointed
out.
(vii) In Mohd. Arbaz (supra) referred and relied on by the
Petitioner, a Single Judge of the Delhi High Court was considering a
claim for default bail on a Prosecution under Sections 21 and 29 of
the NDPS Act, premised on the assertion that the Investigating
12 1989 SCC OnLine Del 348 Crl.Rev.P. No.04 of 2022 9
Anwar Alam vs. State of Sikkim
Agency had failed to file a complete Police Report under Section
173(2) of the Cr.P.C. within the stipulated period of one hundred
and eighty days, although undisputedly a Report unaccompanied
by the Chemical Analysis Report was filed within the stipulated
period. The Petitioners were arrested on 16-12-2018 on recovery
of Heroin from them and the vehicle in which they were travelling.
On 17-12-2018 the FIR under Section NDPS Act was lodged. On
27-05-2019 a Police Report under Section 173(2) Cr.P.C. was filed
before the Special Court sans the Chemical Examiner's Report. The
statutory period of one hundred and eighty days for completion of
investigation had expired on 15-06-2019. On 29-07-2019
statutory bail was filed under Section 167(2) of the Cr.P.C. on the
ground that the Investigating Agency had failed to file the complete
Report, as it was devoid of the Chemical Examiner's Report. The
Single Judge observed that undisputedly the absence of an FSL
Report does not render the Report under Section 173(2) of the
Cr.P.C. an inchoate Report, incapable of being considered in cases
where the Prosecution's Report is not founded on recovery of
contraband. However, in NDPS cases the Prosecution case rests
on recovery of an illicit substance and the Chemical Examiner's
Report evidencing the nature of the substance allegedly recovered,
which would undoubtedly be at the core of the Prosecution case. It
was further observed that certain Courts have held that a Report
under Section 173(2) of the Cr.P.C. would be incomplete if
unaccompanied by the FSL Report identifying the recovered
substance. Reference was made to plethora of decisions of various
High Courts on the point. The Court however concurred with the
views expressed by the Coordinate Bench of the same High Court Crl.Rev.P. No.04 of 2022 10
Anwar Alam vs. State of Sikkim
in Babu (supra), which had referred to the decision of the Division
Bench of the same High Court in Kishan Lal (supra) and although
being of the opinion that an FSL Report in an NDPS case was
indispensable and ought to accompany the Charge-Sheet, observed
as hereunder;
"18. Though this Court is of the view that the [
decision of the Division Bench of the Punjab and Haryana High Court is an appropriate opinion in relation to cognizance of an offence under NDPS Act without the FSL report being an illegality, however, bound by the Division Bench decision of this Court, judicial discipline mandates this Court to follow the same. Consequently, in view of the decision of the Division Bench of this Court in Kishan Lal Vs. State (supra), it is held that the petitioner is not entitled to grant of bail under Section 167(2) CrPC for non-filing of the FSL report along with the charge sheet."
[emphasis supplied]
(viii) In Suleman (supra) relied on by the State-Respondent,
the Petitioner was in custody under Sections 21 and 29 of the
NDPS Act. On completion of investigation, the Charge-Sheet was
filed on 03-03-2021 without the Forensic Report. The Charge-
Sheet already filed mentioned that the Supplementary Charge-
Sheet would be filed on receipt of the Report from the Forensic
Laboratory. The Petitioner filed default bail which the Learned Trial
Court rejected on the ground that Charge-Sheet had indeed been
filed albeit sans Chemical Report. The Single Judge of the Delhi
High Court before whom the Order came to be assailed concurred
with the decision in Kishan Lal (supra) and reasoned inter alia that
the decision of Babu (supra) and Mohd. Arbaz (supra) had also
observed that the accused should not be entitled to default bail as
the Charge-Sheet was already filed.
(ix) In Mohd. Arbaz (supra), aggrieved by the Order of the
Learned Single Judge of the High Court, the Petitioners were before
the Hon'ble Supreme Court, which vide its Order dated 09-11- Crl.Rev.P. No.04 of 2022 11
Anwar Alam vs. State of Sikkim
2022, observed that 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. That, the
matter would require detailed consideration, in the meanwhile the
Petitioners were ordered to be released on bail subject to the
conditions imposed by the concerned Trial Court. Relevantly, it may
be noted that vide the Order dated 13-12-2021, the Hon'ble
Supreme Court in Mohd. Arbaz (supra) took into consideration the
fact that the Petitioners had suffered incarceration for a period of
more than two years and eleven months, hence interim bail was
granted to them for a period of three months subject to the terms
and conditions imposed by the Learned Court.
(x) Thus, the question as to, Whether a Charge-Sheet in
an NDPS case would be considered incomplete on the non-filing of
Chemical Analysis Report along with the Challan, is pending
decision of the Hon'ble Supreme Court.
8. In the instant case, the Petitioner is in Judicial custody
since 08-06-2022. Indubitably, the Charge-Sheet was filed within
the statutory period of sixty days, as provided in Section 167(2) of
the Cr.P.C., the SADA, 2006, not having prescribed the specific
period for completion of investigation. The Petitioner alleges that
the Charge-Sheet is incomplete on account of non-filing of CFSL
Report. The Hon'ble Supreme Court is yet to determine the
question reflected supra in Mohd. Arbaz (supra) and is therefore
seised of the matter. Appositely, I desist from delving into a
detailed discussion and opinion on the question pending
consideration and what the provisions of Section 167(2), Section
173 and Section 190 of the Cr.P.C. entails. Suffice it at this Crl.Rev.P. No.04 of 2022 12
Anwar Alam vs. State of Sikkim
juncture to notice that in Sanjay Dutt vs. State through CBI, Bombay 13 (II) the Hon'ble Supreme Court held that the indefeasible right to
bail under Section 167(2) of the Cr.P.C. enures to the accused and
is enforceable only prior to filing of the Charge-Sheet. That, it does
not survive or remain enforceable on the Challan being filed, if
already not availed of. Once the Challan has been filed the
question of grant of bail has to be considered and decided only with
reference to the merits of the case under the provisions relating to
grant of bail to an accused, after the filing of the Challan.
9. On the bedrock of the above order, Charge-Sheet
having been filed in the instant case within the statutory period
regardless of the admitted fact of absence of FSL Report, on due
consideration of the facts and circumstances placed before me, I
find no reason to interfere with the finding and conclusion of the
Learned Trial Court in the assailed Order.
10. Consequently, the Petition is rejected and disposed of
accordingly.
11. The observations above shall not be construed as
findings on the merits of the matter. The Learned Trial Court shall
without the impediment of the above observations arrive at its
independent findings on completion of trial.
12. Copy of this Order be forwarded to the Learned Trial
Court for information.
13. Pending applications, if any, stand also disposed of.
( Meenakshi Madan Rai ) Judge 29-11-2022 Approved for reporting : Yes ds
13 (1994) 5 SCC 410
