28 Aug 2023 5:45 AM GMT
The Calcutta High Court’s Circuit Bench at Jalpaiguri recently allowed the bail plea of an accused under the Narcotic Drugs & Psychotropic Substances Act (“NDPS”) upon taking note of various ‘procedural infirmities’ in the chargesheet.A division-bench of Justice Moushumi Bhattacharya and Justice Prasenjit Biswas held:A mere statement of filing of a supplementary charge-sheet...
The Calcutta High Court’s Circuit Bench at Jalpaiguri recently allowed the bail plea of an accused under the Narcotic Drugs & Psychotropic Substances Act (“NDPS”) upon taking note of various ‘procedural infirmities’ in the chargesheet.
A division-bench of Justice Moushumi Bhattacharya and Justice Prasenjit Biswas held:
A mere statement of filing of a supplementary charge-sheet upon obtaining the Examination Report does not conform to the statutory mandate under the proviso to section 36A(4) of the NDPS Act. The Chemical Examination Report becomes the most vital piece of evidence which is required to be made part of the charge-sheet.
Court said filing of charge-sheet within 180 days without the Chemical Examination Report with simply a line that a supplementary charge-sheet will be filed in future with the Examination Report is beyond the contemplation of the proviso to section 36A(4) of the NDPS Act.
The provision requires investigation to be completed within the stipulated time period of 180 days. The said period may be extended by the Special Court 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 180 days.
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 I.O filing a cipher only for the sake of closing the first window of the 180 days under the proviso to 36A(4) of the Act. The Prosecution has thus failed on both counts, that is on the statutory mandate of the proviso to section 36A(4) as well as the procedural infirmity of a charge-sheet sans the Chemical Examination Report.
"There is a fundamental difference between the expression “further evidence” under section 173(8) of the Cr.P.C. where the presumption is of new evidence and the Laboratory Report in an NDPS case where the report forms the fulcrum of the charge-sheet on which the Trial Court is to take cognizance of the offence."
These observations came in a plea for bail under Section 439 CrPC by the petitioner, who was arrested under the NDPS Act and had been in custody since August 2022.
It was submitted by the petitioner that there had been considerable delay in the matter, without possibility of trial, and that the Investigating Officer’s chargesheet had suffered from procedural lapses under Section 36A(4) of the NDPS Act.
Petitioners argued that the I.O. had submitted the present chargesheet without a Chemical Examination Report (“CFSL”), relying on a single-line that the report would be filed in a supplementary chargesheet, which the trial court took “mechanical cognizance” of.
It was argued by the respondents, that the chargesheet had been filed within the 180-day stipulated period under Section 36A(4), with a note that the CFSL reports would be filed through a supplementary chargesheet once they were available, thereby not requiring any magisterial sanction under Section 173(8) of the CrPC for further investigation/ extension of time.
Upon hearing the submissions of both parties, the Court held that a chargesheet filed without CFSL is incomplete and cognisance cannot be taken on the same.
The Bench opined that filing CFSL reports by way of a supplementary chargesheet could not be permitted, and would not fall within the ambit of Section 173(8) of the CrPC, since the entire basis of an NDPS investigation is the contraband, which examined in a CFSL report, without which there would be no grounds to hold the accused in custody.
Finally, it was held that for extension of time to file a chargesheet with all its requisite elements, the Public Prosecutor would have to make a prayer for extension under Section 36A(4) of NDPS Act before the Court, and the same could not be done through a prayer in the chargesheet.
Accordingly, the Court allowed the petitioners’ prayer and set out certain conditions for the accused to obey during their time out on bail.
Also Read: NDPS Act | Failure To Annex FSL Report Within Statutory Period Does Not Make Chargesheet Defective, No Default Bail: J&K&L High Court
Also Read: NDPS Act | FSL Report Goes To Root Of Case, Challan Filed Without It Is Incomplete: Punjab & Haryana High Court
Case: Rakesh Sha vs The State of West Bengal
Coram: Justice Moushumi Bhattacharya & Justice Prasenjit Biswas.
Citation: 2023 LiveLaw (Cal) 240
Appearances: For the petitioner : Ms. Ashima Mandla, Adv. Ms. Mandakini Singh, Adv. Mr. Deborshi Dhar, Adv. Mr. Surya Pratap Singh, Adv.
For the State : Mr. Aditi Sankar Chakraborty, Mr. Aniruddha Biswas, Adv.
Click Here To Read/Download Order