7 April 2022 10:48 AM GMT
The Karnataka High Court has held that an accused charged under the Narcotic Drugs & Psychotropic Substances Act (NDPS) Act does not get a right to default bail under Section 167(2) of CrPC, merely because the charge sheet/ final report filed by the Police after investigation is without FSL report. A single judge bench of Justice M Nagaprasanna said, "Non-filing of the FSL report...
The Karnataka High Court has held that an accused charged under the Narcotic Drugs & Psychotropic Substances Act (NDPS) Act does not get a right to default bail under Section 167(2) of CrPC, merely because the charge sheet/ final report filed by the Police after investigation is without FSL report.
A single judge bench of Justice M Nagaprasanna said,
"Non-filing of the FSL report by itself would not make the charge sheet contrary to Section 173(2) of the Cr.P.C."
The bench accordingly rejected the petition filed by one Sayyad Mohammad @ Nasim for quashing of entire proceedings and seeking an interim prayer for release by grant of interim bail on the ground of filing a defective charge sheet or an incomplete charge sheet after investigation.
It is significant to note that the Supreme Court is considering this issue in a special leave petition filed before it, raising legal questions including 'whether investigation in NDPS cases can be considered to be completed in absence of a forensic report of the substance recovered?'.
The petitioner therein has argued that Supreme Court's intervention is required in this required to ensure uniformity in the application of a Special central law across different states, since there are divergent opinions of different High Courts as well as inter-se conflicts between benches of the same High Courts, on these questions.
NDPS Act: "Is Investigation In NDPS Cases Complete Without Forensic Report Of Recovered Substance?" Supreme Court To Consider
The Petitioner in the instant case was travelling in a car from which 60.60 Kgs of Ganja was recovered. He was arrested under section Sections 25 and 3 of the Indian Arms Act, 1959 and Sections 8(c), 20(B)(ii)(c) of the NDPS Act. After investigation, the Police filed a final report/charge sheet before the Court. The petitioner, after filing of the charge sheet, knocked on the doors of the Court.
Senior Advocate Hashmath Pasha appearing for the petitioner submitted that the charge sheet filed by the Police is a defective charge sheet or an incomplete charge sheet, as the contraband substance has been sent for its test to the Forensic Science Laboratory and the report is yet to come.
Further he said ,"In the absence of the report, the substance that was seized is unidentifiable and, therefore, becomes a defective charge sheet. The Police have hurriedly filed an incomplete charge sheet only to get over the rigour of default bail under Section 167(2) of the Cr.P.C...filing of the final report being in violation of Section 173(2) of the Cr.P.C., the petitioner is entitled to be released forthwith on bail."
Prosecution opposed the plea, stating that mere non-filing of FSL report will not vitiate the charge sheet that is filed, as it can always be filed in the proceedings subsequently. Since contraband substance being Ganja it can be easily identifiable by structure and smell and FSL report is only a formality.
The bench relied on the Bombay High Court decision in the case of Manas Krishna T.K. V. State, in which the court delineated inter-play between Section 167(2) and 173 of the Cr.P.C. and held that even if the charge sheet is not accompanied by a field testing report it cannot be labelled as in-complete police report simply because it was not accompanied by FSL report. Resultantly, the accused would not become entitled to default bail for the reason that it was not accompanied by FSL report.
Then the court observed, "Ganja is a substance that can be easily identifiable by its smell, texture and structure." It relied on the Bombay High Court judgement in the case of Sagar Parashuram Joshi Vs. State Of Maharashtra, and said,
"Merely because the charge sheet did not accompany FSL report, the right of the petitioner cannot swing back to contend that he is entitled to be enlarged on bail. As long as the police report containing details as necessary under Section 173(2) is filed within the stipulated period, the accused will not get a right to contend that he is entitled to default bail on the ground that the final report filed is in violation of Section 173(5) of the Cr.P.C."
It added, "Section 173(8) of the Cr.P.C. directs further investigation in the matter. If the Police are entitled to further investigation, further documents can also be filed before the Court. Therefore, the FSL report is open to be placed before the Court."
Accordingly it dismissed the petition.
There is a similar judgment of the Kerala High Court, delivered last year, which held that if the investigating officer, after the investigation, concluded that the offence alleged against the petitioner is maintainable based on the documents submitted before the Court, it can be treated as a complete report u/s.173 Cr.P.C. It cannot be said that the investigation is incomplete simply because the analyst report has not been received from the laboratories.
However, if the investigating officer is mainly relying upon a lab report to prove his case, and even in such a situation, a final report is filed without the report, it cannot be said that it is a final report as contemplated under law.
Read Here: 167(2) CrPC- 'Not Filing Analyst Report Does Not Amount To Incomplete Investigation Unless It Is Solely Relied Upon It': Kerala HC Denies Default Bail To NDPS Accused
Case Title: Sayyad Mohammad @ Nasim V State Of Karnataka
Case No: Writ Petition No.5934 Of 2022
Citation: 2022 Livelaw (Kar) 108
Date Of Order: 29th Day Of March, 2022
Appearance: Senior Advocate Hashmath Pasha, A/W Advocate Kariappa.N.A For Petitioner
Advocate K.P.Yashodha For Respondent
Click Here To Read/Download Order