1988 (8) TMI 438 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the charge-sheet submitted without the Forensic Science Laboratory report.
2. Applicability of Section 167(2) of the Cr. P.C. for bail.
3. Judicial Magistrate's acceptance of the charge-sheet.
4. Merits of the bail application based on possession of opium.

Detailed Analysis:

1. Validity of the Charge-Sheet Submitted Without the Forensic Science Laboratory Report:
The petitioner was arrested for possession of 10 K.G. of opium, and the charge-sheet was submitted without the Forensic Science Laboratory report due to the impending expiration of the 90-day period. The petitioner argued that without the laboratory report, the submission did not qualify as a report under Section 173(2) of the Cr. P.C., thus entitling him to bail under Section 167(2). The court noted that the report was accepted by the Judicial Magistrate as a charge-sheet, and cognizance was taken, making it inappropriate to challenge its validity in a bail application. The court emphasized that once the charge-sheet is accepted and cognizance is taken, the provisions of Section 167(2) no longer apply, and the case is governed by Section 309 of the Cr. P.C.

2. Applicability of Section 167(2) of the Cr. P.C. for Bail:
The petitioner contended that he was entitled to bail under Section 167(2) because the charge-sheet was incomplete without the Forensic Science Laboratory report. The court clarified that the prohibition under Section 167(2) is against remanding an accused to custody beyond 90 days without a charge-sheet. Since the Judicial Magistrate accepted the charge-sheet and took cognizance, Section 167(2) was no longer applicable. The court referred to previous judgments, including Vihabhai Ramdas Patel v. Hemtuji Shivaji Dabhi, which supported the view that a charge-sheet without the chemical analyzer's report is still valid under Section 173(2).

3. Judicial Magistrate's Acceptance of the Charge-Sheet:
The court highlighted that the Judicial Magistrate accepted the charge-sheet and took cognizance of the offenses, issuing process accordingly. This act was not challenged, and the court deemed it inappropriate to question the Magistrate's action in a bail application. The court mentioned that the case was already committed to the Sessions Court, and the Forensic Science Laboratory report received later confirmed the presence of opium, thus supporting the charge.

4. Merits of the Bail Application Based on Possession of Opium:
On the merits, the court noted that the petitioner was found in possession of 10 Kgs. of opium with a morphine percentage exceeding the legal threshold. Given the serious nature of the offense, the court found no grounds to release the petitioner on bail. The court dismissed the application, stating that the petitioner did not deserve bail on merits.

Conclusion:
The court dismissed the bail application, ruling that the charge-sheet submitted without the Forensic Science Laboratory report was valid under Section 173(2) of the Cr. P.C., and the Judicial Magistrate's acceptance of the charge-sheet precluded the application of Section 167(2). The court also found no merit in the bail application based on the serious nature of the offense involving a significant quantity of opium. The court ordered the return of the records and proceedings to the Sessions Court, Vadodara.