2022 (8) TMI 1491 - HC - Indian Laws

Grant of Default bail - Smuggling - substance recovered is actually a banned substance under Sections 21 and 29 of the NDPS Act or not - FSL Report not presented - HELD THAT - It has been repeatedly emphasized by various courts that the right to seek default bail is an indefeasible right provided to the accused. The object of the Default Bail is inherently linked to Article 21 of the Constitution of India, laying emphasis on safeguarding the life and personal liberty of the accused against arbitrary detention. In SANJAY DUTT VERSUS STATE THRU. C.B.I. BOMBAY 1994 (9) TMI 351 - SUPREME COURT , the Constitution Bench of the Hon'ble Supreme Court held that the indefeasible right of the accused to be released on bail for not filing the charge sheet within the statutory period is enforceable by the accused only till the filing of the challan Further, if an accused does not avail Default Bail, they can always seek Regular Bail under Cr.P.C. Whether the FSL report forms part of the charge sheet and is an essential prerequisite to file with the charge sheet? - HELD THAT - In Kishan Lal vs. State 1989 (9) TMI 408 - DELHI HIGH COURT , a Division Bench of this Court observed that a police report does not need to enclose an expert opinion of Government Scientific expert with the charge sheet and thus, no bail was granted under Section 167(2) as the charge sheet was already filed within stipulated time. A similar view was followed by the Coordinate Bench of this Court in Mohd. Arbaz vs. State of NCT of Delhi 2020 (11) TMI 1114 - DELHI HIGH COURT , wherein it was observed that the accused should not be entitled to bail in default as the charge sheet was already filed. The Court held that the report shall not form part of the charge sheet and hence, the bail under Section 167(2) was rejected. At present, the settled law persists in the view that non filing of FSL Report with the charge sheet does not fall within the realms of Section 173(2) of the Cr.P.C. so as to consider it as incomplete report . In the present case although FSL Report has not been filed, however, the charge sheet was already filed on 03.03.2021 within the time period as per law. Further, the amount of quantity recovered from the accused is of commercial nature baring the accused from bail under Section 37 of the NDPS Act. The court finds no infirmity in the impugned order dated 05.05.2022. The application moved by the petitioners seeking bail in default under the provisions of Section 167(2) of the Cr.P.C. is dismissed.

Summary

Issues Involved:
1. Facts of the Case
2. Submissions of Learned Counsels
3. Default Bail Under Section 167
- Objective
- Law
4. FSL Report not part of the ChargeSheet
5. Conclusion

Issue-wise Detailed Analysis:

Facts of the Case:
The petitioner was in custody under FIR no. 96/2021 for offenses under Sections 21 and 29 of the NDPS Act. The charge sheet was filed on 03.03.2021 without the FSL report. The petitioner was arrested on 04.03.2021 with 300 grams of heroin. The petitioner sought default bail under Section 167(2) Cr.P.C., arguing that the charge sheet was incomplete without the FSL report. The trial court dismissed the bail application, stating the charge sheet was filed within 180 days and the quantity recovered was of commercial nature, invoking Section 37 of the NDPS Act.

Submissions of Learned Counsels:
The petitioner's counsel argued that the charge sheet was incomplete without the FSL report, questioning the legality of the substance recovered. The APP for the State countered that the issue of the FSL report's necessity in the charge sheet is pending before the Supreme Court, and current law by the Delhi High Court does not require the FSL report to be part of the charge sheet.

Default Bail Under Section 167:

Objective:
Section 167(2) Cr.P.C. provides the accused an indefeasible right to default bail if the charge sheet is not filed within the stipulated time. The period of detention starts from the date of remand, not arrest. The maximum periods are 15 days for police custody, 60 days for judicial custody for offenses punishable less than 10 years, 90 days for offenses punishable more than 10 years, and 180 days under Section 36A(4) of the NDPS Act. The provision safeguards personal liberty under Article 21 of the Constitution.

Law:
The Supreme Court in Sanjay Dutt vs. State held that the right to default bail is enforceable only before the filing of the charge sheet. In M. Ravindran vs. The Intelligence Officer, the Supreme Court emphasized that Section 167(2) Cr.P.C. is linked to Article 21, ensuring no arbitrary detention. The right to default bail cannot be suspended and must be interpreted to protect the accused's liberty.

FSL Report not part of the Charge Sheet:
In Kishan Lal vs. State, the Delhi High Court held that the police report need not include the FSL report for the charge sheet to be complete. This view was followed in Babu vs. The State and Mohd. Arbaz vs. State of NCT of Delhi, where it was held that the absence of the FSL report does not render the charge sheet incomplete, and hence, default bail under Section 167(2) was not granted.

Conclusion:
The court found no infirmity in the trial court's order dated 05.05.2022. The charge sheet was filed within the statutory period, and the quantity recovered being of commercial nature barred the petitioner from bail under Section 37 of the NDPS Act. The application for default bail under Section 167(2) Cr.P.C. was dismissed.