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2020 (11) TMI 1114 - HC - Indian Laws


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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