24 Aug 2022 8:03 AM GMT
The Madhya Pradesh High Court recently differed from the viewpoint taken by the Punjab and Haryana High Court by observing that an accused in NDPS case is not liable for grant of default bail despite the prosecution failing to submit the FSL report along with the Challan (Chargesheet). The bench comprising of Justice Sujoy Paul accordingly observed- In the considered opinion of...
The Madhya Pradesh High Court recently differed from the viewpoint taken by the Punjab and Haryana High Court by observing that an accused in NDPS case is not liable for grant of default bail despite the prosecution failing to submit the FSL report along with the Challan (Chargesheet).
The bench comprising of Justice Sujoy Paul accordingly observed-
In the considered opinion of this Court, the word 'shall' employed in Section 173 (5) of the Cr.P.C. is only directory in nature in view of the judgment of Supreme Court in Narendra K. Amin (supra). A conjoint reading of the provisions aforesaid does not lead this Court to the conclusion that non-filing of FSL report with the challan either vitiates the challan or makes the applicant entitled for the default bail. Thus, I am in agreement with the view taken by Rajasthan, Gujarat and Bombay High Court in above mentioned cases and unable to persuade myself with the view taken by the Punjab and Haryana High Court.
Also Read: NDPS Act | Chargesheet Without FSL Report Not Defective, No Ground For Default Bail U/S 167(2) CrPC: Karnataka High Court
The Applicant was booked under Section 8/ 20 of NDPS Act and under Sections 130, 177 (3) Motor Vehicles Act. Moving an application for bail under Sections 439 CrPC, the singular and pivotal question raised by him was that while filling the Challan, the prosecution could not file the report of Forensic Science Laboratory (FSL) regarding the substance allegedly recovered from him, and thus he had become entitled to get the benefit of default bail under Sections 167(2) CrPC.
The Applicant submitted before the Court that the complete Challan should have been filed within the stipulated period, considering the nature of crime he was alleged to have committed, and therefore, by referring to the decisions of the Punjab & Haryana High Court in Ajit Singh alias Jeeta & Anr. v. State of Punjab and in State of Haryana v. Dildar Ram @ Dari, the Applicant argued that he was entitled to get the benefit of default bail.
He further submitted that the FSL report regarding the nature of substance is inseparable part of the Challan and since it was not filed within the statutory time limit, he deserved default bail as it was an enforceable right which he deserved to enjoy.
Examining the submissions of parties and documents on record, the Court proceeded with the analysis of the decisions of the P&H High Court referred to by the Applicant. The Court noted that the High Courts have formed divergent views on subject concerned-
No doubt, in the case of Ajit Singh and Dildarram (supra), the Punjab & Haryana High Court has granted benefit of default bail on the ground that the chemical examiner's report is an essential, integral and inherent part of investigation under the NDPS Act. It is like the foundation of an accused's culpability without which a Magistrate would not be able to form an opinion and take cognizance of accused's involvement in the commission of crime under the said Act.
The argument based on the said two judgments on the first blush appears to be attractive but lost its complete shine when examined in the teeth of relevant statutory provisions and judgments delivered by various other High Courts.
The Court went on to scrutinise the decisions of various High Courts on the said subject, some of which had considered the decisions of the P&H High Court that were being relied upon by the Applicant, but had taken a divergent view from the same.
Concurring with the reasoning of other High Courts namely, Rajasthan, Gujarat and Bombay High Court, the Court observed that considering the language and reasoning under Sections 173(2), 173(5) and 190 CrPC, it was unable to persuade itself with the view taken by the P&H High Court.
With the aforesaid observations, the Court rejected the contentions raised by the Applicant, and accordingly, his application was dismissed.
Read LiveLaw reports on judgments by P&H High Court on this proposition here:
NDPS Act | FSL Report Goes To Root Of Case, Challan Filed Without It Is Incomplete: Punjab & Haryana High Court
"Challan Filed Without FSL Report": Punjab And Haryana High Court Grants 'Default Bail' In 1.6 KG Drug Seizure Case
Forensic Report Forms Foundation Of Cases Under NDPS Act; In Its Absence, The Prosecution's Case Falls To Ground: P&H High Court
Case Title: KHILAN SINGH versus THE STATE OF MADHYA PRADESH
Citation: 2022 LiveLaw (MP) 195
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