2020 (9) TMI 1306 - HC - Indian Laws

Seeking grant of bail - smuggling - Heroin - charge sheet was not filed within the statutory period of 60 days - petitioner having been prevented from filing an application seeking the default bail, for the reason, he was not represented by a lawyer - HELD THAT - In the present case, the petitioner could not file an application seeking indefeasible right to bail under Section 167(2) CrPC on account of inaction on the part of the learned Special Court in ensuring that the petitioner was represented by a counsel during the period of remand as well and that he was informed of the said right. Hon'ble Supreme Court has repeatedly emphasized the bounden duty of the Trial Courts to inform the accused of his right to seek default bail. In the decision reported as Rakesh Kumar Paul Vs. State of Assam 2017 (8) TMI 1526 - SUPREME COURT , expounding the duty of the Courts in providing free legal assistance to the accused as also informing him of his right to seek the statutory bail, held the petitioner had satisfied all the requirements of obtaining 'default bail' which is that on 11th January, 2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail - The facts of the present case are undoubtedly distinguishable from the facts in Rakesh Kumar Paul as between the period of 4th February, 2020 to 13th February, 2020, the petitioner having not been informed about his indefeasible right to default bail, he could not seek the same by filing an application and as held in a catena of decisions of the Hon'ble Supreme Court, unless the accused applies for the default bail during the said period, the accused will not be entitled to the same as a matter of right. Though this Court is of the view that the decision of the Division Bench of the Punjab and Haryana High Court is an appropriate opinion in relation to cognizance of an offence under NDPS Act without the FSL report being an illegality, however, bound by the Division Bench decision of this Court, judicial discipline mandates this Court to follow the same. Consequently, in view of the decision of the Division Bench of this Court in Kishan Lal Vs. State 1989 (9) TMI 408 - DELHI HIGH COURT , it is held that the petitioner is not entitled to grant of bail under Section 167(2) CrPC for non-filing of the FSL report along with the charge sheet. In the alternative petitioner also seeks bail on merits. The petitioner was apprehended by a team of Narcotics Squad on 6th December, 2019 pursuant to an information received that the petitioner along with the co-accused was supplying smack in the area of Sultanpuri and Wazirpur J.J. colony and would come for the supply at about 6.30-7 pm. On the pointing out of the informer, the petitioner and the co-accused were apprehended and a notice under Section 50 of the NDPS Act was served on the petitioner and the co-accused and they were informed about their right to be examined before a Gazetted Officer and Magistrate. Despite refusal of the petitioner and the co-accused, ACP (Operations) was present when the search was conducted and on the search of the petitioner, 50 gms of Heroin was recovered and another 50 gms of Heroin was recovered from the co-accused. Two samples of 5 gms each were drawn and kept in separate pullandas. The samples and the remaining contraband were sealed and after performing the necessary codal formalities, the same were deposited in the Malkhana. Considering the nature of drug/Heroin allegedly recovered from the petitioner and no procedural infirmity having been pointed out, this Court finds no ground to grant bail to the petitioner on merits as well. Petition is dismissed.

Summary

Issues Involved:
1. Entitlement to default bail under Section 167(2) CrPC due to non-filing of the charge sheet within the statutory period.
2. Validity of the charge sheet filed without the FSL report.
3. Merits of the bail application based on the nature of the alleged offense and procedural compliance.

Issue-wise Detailed Analysis:

1. Entitlement to Default Bail under Section 167(2) CrPC:
The petitioner argued that since the charge sheet was not filed within the statutory period of 60 days, he was entitled to bail under Section 167(2) CrPC. The petitioner was not represented by a lawyer during the remand period and was not informed of his right to default bail. The Court emphasized that it is the bounden duty of the Trial Courts to inform the accused of their right to seek default bail. The Supreme Court in Rakesh Kumar Paul Vs. State of Assam highlighted the obligation of the courts to inform the accused about their right to default bail. However, since the petitioner did not apply for default bail during the period from 4th February 2020 to 13th February 2020, he was not entitled to default bail as per the precedents set by the Supreme Court in Sanjay Dutt Vs. State Through CBI, Bombay (II) and Hitendra Vishnu Thakur and Ors. Vs. State of Maharashtra and Ors.

2. Validity of the Charge Sheet Filed Without the FSL Report:
The petitioner contended that the charge sheet filed without the FSL report was incomplete, and thus he was entitled to default bail. The Court referred to the decision of the Punjab and Haryana High Court in Ajit Singh alias Jeeta and Another Vs. State of Punjab, which held that a charge sheet without the Chemical Examiner’s report is incomplete. However, the Delhi High Court, in Kishan Lal Vs. State, held that the absence of the FSL report does not render the charge sheet incomplete for the purpose of taking cognizance. The Court, bound by the Division Bench decision in Kishan Lal Vs. State, concluded that the petitioner was not entitled to bail under Section 167(2) CrPC for non-filing of the FSL report along with the charge sheet.

3. Merits of the Bail Application:
The petitioner also sought bail on merits, arguing that the recovery of 50gms of Heroin from him was less than the commercial quantity. The Court noted that the petitioner was apprehended based on credible information and the recovery process complied with the procedural requirements under the NDPS Act. The Court found no procedural infirmity in the recovery process and considering the nature of the drug (Heroin) allegedly recovered, found no ground to grant bail to the petitioner on merits.

Conclusion:
The petition for bail was dismissed on all counts. The Court held that the petitioner was not entitled to default bail under Section 167(2) CrPC due to the non-filing of the charge sheet within the statutory period, nor was the charge sheet incomplete due to the absence of the FSL report. Additionally, no merit was found in the bail application based on the substance and procedural compliance of the case.