1989 (9) TMI 408 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the investigation under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is complete without the expert's report.
2. Validity of cognizance taken by the Magistrate based on an incomplete report.
3. Entitlement to bail under Section 167(2) of the Code of Criminal Procedure (CrPC) after 90 days of arrest.
4. Jurisdiction of the High Court to grant bail under Section 439 of the CrPC in light of the amended Section 37 of the NDPS Act.
5. Interim bail due to medical reasons.

Detailed Analysis:

1. Whether the investigation under the NDPS Act is complete without the expert's report:
The settled legal position is that the Magistrate can take cognizance of offences upon a police report under Section 173(2) of the CrPC even if it does not include the expert's report. The Supreme Court, in Tara Singh v. State, held that the police report is complete as long as the witnesses acquainted with the circumstances of the case have been examined. This principle applies even if the expert's report is pending. The judgment reiterates that the absence of an expert's report does not render the investigation incomplete.

2. Validity of cognizance taken by the Magistrate based on an incomplete report:
The Court held that the Magistrate has the discretion to take cognizance of an offence based on a police report that is complete in terms of Section 173 of the CrPC, even if it lacks the expert's opinion. The police report, if filed in accordance with Section 173, is deemed complete, and the Magistrate can seek the expert's report if necessary. The provisions of Section 173 are distinct from Section 190(1)(b) of the CrPC, which empowers the Magistrate to take cognizance.

3. Entitlement to bail under Section 167(2) of the CrPC after 90 days of arrest:
The petitioners contended that they were entitled to bail after 90 days of arrest as the investigation was incomplete without the expert's report. The Court rejected this argument, stating that the investigation is considered complete if the police report is filed under Section 173(2) of the CrPC, even without the expert's report. Thus, the cognizance taken by the Magistrate was valid, and no order for bail under Section 167(2) was required.

4. Jurisdiction of the High Court to grant bail under Section 439 of the CrPC in light of the amended Section 37 of the NDPS Act:
The amended Section 37 of the NDPS Act imposes limitations on granting bail, requiring the Public Prosecutor's opportunity to oppose and the court's satisfaction that the accused is not guilty and unlikely to commit an offence while on bail. The High Court's special powers under Section 439 of the CrPC are preserved, and the limitations in Section 37 do not fetter these powers. The Court concluded that the High Court retains its jurisdiction to grant bail under Section 439 of the CrPC, notwithstanding the limitations in Section 37 of the NDPS Act.

5. Interim bail due to medical reasons:
The petitioner Kishan Lal was granted interim bail due to his medical condition, as he was suffering from pulmonary tuberculosis and uncontrolled diabetes. The Court noted that the State could not ensure his immediate admission to a specialized hospital. The interim bail was extended to allow the petitioner to seek appropriate medical treatment.

Conclusion:
The petitions were dismissed, affirming that the investigation under the NDPS Act is complete without the expert's report for the purpose of taking cognizance. The High Court retains its special powers to grant bail under Section 439 of the CrPC, and the limitations in Section 37 of the NDPS Act do not apply to these powers. The petitioner Kishan Lal's interim bail was extended for medical reasons, and both petitioners were given the liberty to file appropriate applications before the Single Judge.