Calcutta High Court Grants Bail To NDPS Accused, Says No Reason To Obligate Them To Rigors Of S.37 In Absence Of Forensic Report

A Calcutta High Court vacation bench comprising Justices Sabyasachi Bhattacharya and Partha Sarathi Chatterjee have granted bail to the petitioners who had been accused under the NDPS Act, upon noting that the rigors of Section 37 of the NDPS Act which requires a Court to only grant bail if there are reasonable grounds to believe the accused are not guilty and will not reoffend, would not apply to the present case.

In observing that although a charge sheet had been filed, the forensic report (“CFSL report”) or even a supplementary charge sheet had not been taken on board due to “institutional latches,” the bench ordered:

Although charge-sheet was filed within 180 days, the same was merely lip-service paid to the provisions of the statute. Section 37 of the NDPS Act has to be strictly construed since it operates against the fundamental rights of personal liberty of a person. There is nothing on record to show that till date any CFSL report has been submitted by the investigating authorities. Hence, in the absence of the CFSL report, due to institutional laches, we do not find any reason to obligate the petitioners with the rigour of Section 37 of the NDPS Act.

Counsel for the petitioners argued that in the present case, there were several contraventions of the NDPS Act which had taken place, and hence the rigors of Section 37 would not apply.

It was submitted that although the chargesheet had been submitted within 180 days under Section 36A(4), the same had been done without the CFSL report.

Counsel for the State submitted that the provisions of the NDPS act had been complied with, and that the CFSL report was not a mandatory constituent of a charge sheet.

In relying on a coordinate bench’s decision in the case of Rakesh Sha v State of West Bengal, the Bench observed that while the test for further incarceration in such cases would be the existence of other incriminating circumstances against the accused, there were no such circumstances which existed in the present case.

The Division Bench observed that filing of a charge-sheet without the examination report in relation to an offence under the NDPS Act is an exercise in futility and raises the presumption of the investigating officer filing a cipher only for the sake of closing the first window of 180 days under the proviso to Section 36A(4) of the Act. In such circumstances, the Court granted bail. Seen from such perspective we are inclined to grant bail to the petitioners, it concluded.

Advocates for the Petitioners: Mr. Purbayan Chakraborty and Mr. Swastika Chowdhury

Citation: 2023 LiveLaw (Cal) 326

Case: In the matter of: Sanjay Kashyap & Anr

Case No: CRM (NDPS) 1779 of 2023

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