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2020 (11) TMI 1114 - HC - Indian LawsGrant of Default bail - bail sought on the ground that investigating agency has failed to file a police report under Section 173(2) of the Cr.P.C. within the stipulated period of one-hundred and eighty days - recovery of narcotic drugs and/or psychotropic substance - police report under Section 173(2) of the Cr.P.C. can be considered as such if it is not accompanied by a Chemical Examiner's Report with regard to the substance recovered or not - entitlement for default bail when application for such bail has been filed prior to the submission of the report under Section 173(2) of the Cr.P.C. but is taken up for consideration simultaneously with the said report being filed. Whether in a case of commission of an offence punishable under the provisions of the NDPS Act, which is founded on recovery of narcotic drugs and/or psychotropic substance, a police report under Section 173(2) of the Cr.P.C. can be considered as such if it is not accompanied by a Chemical Examiner's Report with regard to the substance recovered? - HELD THAT - In Mehal Singh 1978 (4) TMI 240 - PUNJAB AND HARYANA HIGH COURT , the full Bench of the Punjab and Haryana High Court examined the question whether the investigation of an offence could be considered complete in terms of Section 173(2) of the Cr.P.C., even though the police officer investigating the case had not received the reports of experts such as the chemical examiner, the serologist, the ballistic expert or the finger print expert, which are admissible in law under Section 293 of the Cr.P.C. And, whether such a chargesheet would qualify to be termed as a police report in terms of Section 190(1)(b) of the Cr.P.C. to enable a Magistrate to take cognizance of the offence disclosed therein. The Court referred to the decision of the Supreme Court in Noor Khan v. State of Rajasthan AIR 1964 SC 286 and observed that it was deducible from the said decision that it is not incumbent upon the investigating officer to reduce in writing the statements of witnesses. The Court held that he may merely include their names in the list of witnesses in support of the prosecution's case when submitting the chargesheet - The Court further reasoned that the contention that a chargesheet would be incomplete if not accompanied by the report of experts such as chemical analyst, serologist, ballistic expert, fingerprint expert etc. stands on a weaker ground. The petitioners' contention that the report submitted on 27.05.2019 could not be construed as a report under Section 173(2) of the Cr.P.C. must be rejected. The first question is, thus, answered in the negative. Whether an accused would be entitled to bail in default under Section 167(2) of the Cr.P.C. where his application for such bail has been filed prior to the submission of the report under Section 173(2) of the Cr.P.C. but is taken up for consideration simultaneously with the said report being filed? - HELD THAT - As per Section 167 of the Cr.P.C., after the period of sixty days or ninety days as the case may be expires, the Magistrate would have no power to remand him to custody and he is required to be released on bail, if he is prepared to and furnishes the bail. It is also expressly provided that every person released on bail under the said sub-section would be deemed to be released under the provisions of Chapter XXXIII of the Cr.P.C. for the purposes of that Chapter. Once the maximum period for completing the investigation as specified under Section 167(2) of the Cr.P.C. is expired and once the accused indicates that he is prepared to furnish bail and does so, he is bound to be released. In Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors. 1994 (7) TMI 343 - SUPREME COURT , the Supreme Court held that although the accused would be entitled to bail in default, in case the investigation is not complete in terms of Section 167(2) of the Cr.P.C. read with Section 20(4) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) provided such bail cannot be granted by the court on its own motion without any application being made by the accused person of his offering to furnish bail. The Court also clarified that at that stage, that it would only consider whether the challan has been filed within the maximum period as prescribed or whether the said period has been extended under Clause (bb) of Sub-section (4) of Section 20 of the TADA. The court would not be concerned with any other consideration such as the gravity of the case, seriousness of the offence or character of the offender. The impugned order, which is premised on the basis that the court would have to consider the question of default bail at the point when the application is taken up for consideration is unsustainable - As explained by the Supreme Court in Nirala Yadav 2014 (6) TMI 1018 - SUPREME COURT , the accused can avail his liberty only by filing an application stating that the statutory period for filing of the challan has expired, the same has not yet been filed, and an indefeasible right has accrued in his favour and further he is prepared to furnish the bail bond. Once such an application is filed, it is obligatory on the part of the court to verify from the records as well as the public prosecutor whether the time has expired and the charge-sheet is filed or not . The moment the accused makes such an application, the court is required to only examine whether the conditions as prescribed under Section 167(2) of the Cr.P.C. have been met when the application is made. If they are, then the power of the court to remand is lost and the accused has to be granted bail. In this view, this Court is unable to concur with the reasoning of the Special Court in the impugned order - The implicit assumption that the relevant point of time for considering whether the accused have availed of their indefeasible right would be the point at which the applications are considered and not when it is filed, as stated earlier, not sustainable. The impugned order is set aside. However, the applications moved by the petitioners before the said court seeking bail in default under the provisions of Section 167(2) of the Cr.P.C. are dismissed.
Issues Involved:
1. Whether a police report under Section 173(2) of the Cr.P.C. is incomplete if not accompanied by a Chemical Examiner's Report. 2. Whether an accused is entitled to bail in default under Section 167(2) of the Cr.P.C. if their application for such bail is filed before the submission of the report under Section 173(2) of the Cr.P.C. but is considered simultaneously with the said report being filed. Detailed Analysis: Issue 1: Completeness of Police Report under Section 173(2) of the Cr.P.C. without Chemical Examiner's Report The petitioners argued that a police report under Section 173(2) of the Cr.P.C. is incomplete without a Chemical Examiner's Report, which is essential for establishing the nature of the substance recovered in NDPS Act cases. They cited decisions from various High Courts supporting this view, emphasizing that the Chemical Examiner's report is crucial for the court to take cognizance of the offence. The respondents countered this by referring to other judicial decisions that a police report can be considered complete even without the Chemical Examiner's report, provided other substantial evidence is available. The court acknowledged the divergent opinions on this matter. It noted that while some courts have held that the absence of a Chemical Examiner's report renders a police report incomplete in NDPS Act cases, other courts have held that a police report can still be complete without it. The court referred to the decision in Mehal Singh where it was held that a police report is not incomplete merely because it lacks the Chemical Examiner's report. The court also discussed the decision in Ajit Singh @ Jeeta, which emphasized the importance of the Chemical Examiner's report in NDPS Act cases, suggesting that without it, the police report is incomplete. Ultimately, the court concluded that the petitioners' contention that the report submitted on 27.05.2019 could not be construed as a report under Section 173(2) of the Cr.P.C. must be rejected, answering the first question in the negative. Issue 2: Entitlement to Bail in Default under Section 167(2) of the Cr.P.C. The court then considered whether the petitioners were entitled to bail in default under Section 167(2) of the Cr.P.C. The petitioners filed their bail applications before the Chemical Examiner's report was filed but were considered simultaneously with the report being filed. The court noted that once the statutory period for completing the investigation expires, the Magistrate has no power to remand the accused to custody, and they must be released on bail if they indicate they are prepared to furnish bail. This right is enforceable only before the chargesheet is filed. The court referred to several Supreme Court decisions, including Sanjay Dutt v. State and Uday Mohanlal Acharya v. State of Maharashtra, which clarified that the right to bail in default is enforceable only before the chargesheet is filed and does not survive once the chargesheet is filed. The court emphasized that the right to default bail is availed when the application is filed, not when it is considered. Therefore, the court found the Special Court's reasoning that the applications could only be considered at the time the accused were produced before the court to be erroneous. However, despite finding the Special Court's decision erroneous, the court concluded that no relief could be granted to the petitioners because their contention that an indefeasible right for default bail had accrued was based on an erroneous assumption that a final report under Section 173(2) of the Cr.P.C. had not been filed within the stipulated period. Conclusion: The court set aside the impugned order but dismissed the applications moved by the petitioners seeking bail in default under Section 167(2) of the Cr.P.C. All pending applications were also disposed of.
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