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2016 (4) TMI 1463 - HC - Indian LawsSmuggling - recovery of 6 kgs of opium from possession of petitioner - Report of chemical examiner having not been received within a period of 180 days which expired on 29.1.2016 - whether challan without the report of chemical examiner presented within a period of 180 days could be said to be a challan as per the legal requirements of Section 173 (2) Cr.P.C. read with Section 173 (5) Cr.P.C., dis-entitling the accused for the default bail under Section 167 (2) Cr.P.C? HELD THAT - A Division Bench of this Court in VARINDER SINGH SANDHU AND ORS. VERSUS STATE OF PUNJAB 2015 (11) TMI 1900 - PUNJAB AND HARYANA HIGH COURT , has held that where an application for extension of time is filed by the PP before the expiry of 180 days for report of FSL having not been received, the accused would not be entitled to the benefit of Section 167 (2) Cr.P.C. This Court in RAVINDER VERSUS STATE OF HARYANA 2014 (9) TMI 1284 - PUNJAB AND HARYANA HIGH COURT has granted the default bail under Section 167 (2) Cr.P.C. when the cognizance had been taken by the trial Court without having obtained report of chemical examiner, observing that a report not accompanied by chemical examiner report would be a no charge-sheet. The Andhra Pradesh High Court in Matchumari China Venkatareddy and others Vs. State of AP, 1993 (3) TMI 391 - ANDHRA PRADESH HIGH COURT , has held that filing of charge sheet under Section 173 (2) Cr.P.C. was not complete unless it is accompanied by the papers contemplated under Section 173 (5) Cr.P.C. The Bombay High Court in Sunil Vasantrao Phulbande and another Vs. State of Maharashtra, 2002 (2) TMI 1362 - BOMBAY HIGH COURT has granted benefit of Section 167 (2) Cr.P.C. to accused holding that incomplete charge sheet cannot be treated as police report at all as contemplated under Section 173 (2) Cr.P.C. Following the judgment of Apex Court in Satya Narain Musadi s case 1979 (9) TMI 197 - SUPREME COURT which has been followed by the High Court of Andhra Pradesh in Matchumari China s case, and by Calcutta High Court in Raghubirsaran Jain and another Vs. State and another, 1995 (6) TMI 203 - CALCUTTA HIGH COURT , it is opined that the petitioners herein should have been released, in peculiar circumstances of this case, as indefeasible right had accrued to them under Section 167 (2) Cr.P.C. on presentation of incomplete challan without the report of chemical examiner and the prosecution agency having not availed the benefit of Section 36 A (4) of the NDPS Act within a period of 180 days. In a case under the NDPS Act, a right of bail under Section 167 (2) Cr.P.C. of an accused can be defeated by the prosecution agency by availing the remedy under Section 36 A (4) of the NDPS Act subject to the fulfillment of the statutory requirement of Section 36 A (4) of the NDPS Act which is to be considered in each case on individual merits by the concerned trial Court/ Special Judge. The right under Section 167 (2) Cr.P.C. cannot be defeated by merely filing an incomplete challan. The facts and circumstances of Narendra Kumar Amin s case 2015 (1) TMI 1456 - SUPREME COURT are not applicable to the facts of the present case as the challan presented in the said case fulfilled all the requirements of Section 173 (2) Cr.P.C. In the present case, without availing the remedy under Section 36 A (4) of the NDPS Act, an attempt had been made by the prosecution agency to defeat the rights of the petitioner by presenting challan within a period of 180 days without the report of chemical examiner which report had not been received even till the date of filing of the present revision petition. The order passed by the Special Judge, Ludhiana dated February 3, 2016 dismissing the application under Section 167 (2) Cr.P.C. is hereby set aside. Petitioners are ordered to be released on bail on their furnishing bail bonds/ surety bonds to the satisfaction of the trial Court - petition allowed.
Issues Involved:
1. Whether the failure of the prosecution agency to file an application under Section 36-A (4) of the NDPS Act affects the right of the accused to default bail under Section 167 (2) Cr.P.C. 2. Whether the presentation of a challan without the report of the Chemical Examiner within 180 days is considered a complete challan under Section 173 (2) Cr.P.C. and Section 173 (5) Cr.P.C. 3. Whether the accused is entitled to default bail under Section 167 (2) Cr.P.C. due to the incomplete challan. Issue-wise Detailed Analysis: 1. Failure to File Application under Section 36-A (4) of the NDPS Act: The prosecution did not file an application under Section 36-A (4) of the NDPS Act to extend the detention period beyond 180 days. This failure is significant because it deprived the prosecution of the opportunity to legally extend the detention period, which is a statutory requirement to defeat the accused's right to default bail under Section 167 (2) Cr.P.C. The court emphasized that a special provision under Section 36-A (4) of the NDPS Act allows for the extension of detention, subject to the trial court's consideration and statutory requirements. 2. Presentation of Challan Without Chemical Examiner’s Report: The prosecution presented a challan on December 23, 2015, without the Chemical Examiner's report, which was received on March 2, 2016. The court had to determine whether this incomplete challan met the legal requirements of Section 173 (2) Cr.P.C. and Section 173 (5) Cr.P.C. The court referred to various judgments, including Satya Narain Musadi Vs. State of Bihar, which held that a report under Section 173 (2) Cr.P.C. must be accompanied by all documents and statements required under Section 173 (5) Cr.P.C. The court concluded that a challan without the Chemical Examiner’s report is incomplete and does not fulfill the statutory requirements, thereby affecting the validity of the prosecution's case. 3. Entitlement to Default Bail under Section 167 (2) Cr.P.C.: The petitioners filed for bail on January 30, 2016, arguing that the incomplete challan did not constitute a legal report under Section 173 (2) Cr.P.C. The court noted that the right to default bail accrues when the prosecution fails to present a complete challan within the stipulated period. The court cited several precedents, including Sunil Vasantrao Phulbande Vs. State of Maharashtra, which held that an incomplete charge sheet does not meet the requirements of Section 173 (2) Cr.P.C. The court concluded that the petitioners' right to default bail under Section 167 (2) Cr.P.C. had accrued due to the incomplete challan, and the prosecution's failure to file the Chemical Examiner's report within the 180-day period. Conclusion: The court allowed the revision petition, setting aside the Special Judge's order dated February 3, 2016, which had dismissed the application for default bail. The court ordered the petitioners to be released on bail upon furnishing bail bonds/surety bonds to the satisfaction of the trial court. The court reiterated that the right to default bail under Section 167 (2) Cr.P.C. cannot be defeated by merely filing an incomplete challan, especially in the context of the NDPS Act.
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