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TMI Blog1989 (9) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... 190(l)(b) of the Code of Criminal Procedure (for short the Code) is not permissible. (2) The petitioners in two different cases were arrested turn offences under various Sections of the Ndps Act on two different dates. They were refused bail and remanded to judicial custody. The report under Section 173(2) of the Code in Gurdev Singh's case was filed on 90th day of his arrest and in the case of Kishan Lal, before the expiry of 90 days. Acting on those reports, the Magistrate concerned took cognizance of the offences and remanded the accused to judicial custody. The admitted fact is that opinion of the Central Forensic Science Laboratory by then bad not been received by the Investigating Officer. It is the further admitted position that during the pendency of these two petitions before us, the reports of the Government Expert in the respective cases were received and filed before the courts concerned. Those reports show that the samples from the seized commodity in the case of Gurdev Singh were of "Poppy Straw" and in the case of Kishan Lal, "Charas", both falling within the ambit of the Ndps Act. (3) Gurdev Singh filed a petition (Cr.M(M) No. 1132/88) unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (7) It has been held by the Supreme Court that although the police are not permitted to send an incomplete report under Section 173(2) of the Code, yet the investigation except for the report of an expert like the Serologist or Scientific Officer and Chemical Examiner is complete and, Therefore, the Magistrate is empowered to take cognizance of the offence on a police report which does not include the expert's opinion. In Tara Singh v. State. [1951] 2 SCR 729, the Police had infact filed a report dated the 2nd October, 1949 terming it an "incomplete challenge "and on the 5th October they filed a report which they called a "complete challan". Thereafter on the 19th October they filed yet another report which was termed as "Supplementary challan". The objection taken at the trial was that the Magistrate had no power to take cognizance of the case on 3rd October when the incomplete challan dated 2nd October, 1949 was placed before him. It was contended that the Police are not permitted to file an incomplete report under Section 173(2) of the Code. (8) It appears from paragraph 14 of the reported judgment that the witnesses named by the police in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e." Accordingly, the challan which the police called an incomplete challan was in fact a completed report of the kind which Section 173(1)(a) of the Code contemplates. There is no force in this argument and we hold that the Magistrate took proper cognizance of the matter." (9) A Full Bench of the Punjab & Haryana High Court in State of Haryana v. Mehal Singh and another Air 1978 P&H 341, after surveying the case law including a judgment of a single Judge of this Court in Harichand and Raj Pal v. State. 1977 2 (Delhi) 367 on which case, petitioners have placed great reliance, has also held that the investigation of an offence cannot be considered to be un-conclusive merely for the reason that the Investigating Officer when he submitted his report in terms of Sub-section (2) of Section 173 of the Code, still awaited the report of the expert, lt was further observed that even if the Investigating Officer failed to append to the Police report, the statement under Section 16th of the Code of the opinion of the experts although available with him, vet the investigation was complete and the report filed before the magistrate was proper, !n the said case the accused were seeking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to cast on the Investigating Officer only an additional duty of sending Along with the report documents or extracts thereof on which the prosecution proposes to rely and this additional duty cannot be construed as in any manner prejudicing the police report envisaged in Sub-section (5) of Section 173 and this additional duty appears to have been necessitated to enable the Magistrate taking cognizance of the case to comply with the mandatory provisions of law contained in Section 207 of the Code for the purpose of furnishing to the accused, free of cost, a copy of such document." (13) In Mehal Singh's case (supra), the Full Bench on this aspect held that: "In the new Code the incorporation of Sub-section (5) in Section 173 of the Code has in no manner changed or affected the content or concept of the 'police report' envisaged in the unamended Code in Sub-section (1) of Section 173 and, Therefore, the ratio of Tara Singh's case [1951] 2 SCR 729 (supra) applies to the facts of the present case with full force. The incorporation of Sub section (5) of Section 173 of the amended code was necessitated by the fact that under Section 207 of the amended Code a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt or contents of a police report (15) We respectfully agree with the earlier decision of this Court in Tej Singh's case (supra). The decision in Hari Chand and Raj Pal v. State (supra) by a single Judge of this Court wherein it has been held that an "incomplete challan is not a police report within the admit of Section 173(2) of the Code does not support the case of the petitioners. From the reported judgment it. is not clear whether all the witnesses or some of them "acquainted with the circumstances of the case" were yet to be examined when the report was filed The reason for calling it incomplete is no discernible. But it is safer to assume from the reading of the judgment that the investigation was not complete .Thus the report as envisaged under Section 173(2) of the Cods could not have been filed. (16) It is unnecessary for us to notice other judgments cited by the learned counsel in support of their plea that the investigation in a case like the present is to he held to be incomplete. In our view the Supreme Court decision in Tarn Singh's case (supra) holding, inter alia. that a police report which is not accompanied by the expert's opinion, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code. It is true that it is open to the Court where it thinks fit to summon and examine the Government Scientific expert. But he is not a formal witness and, Therefore, no duty is cast upon the investigating officer to cite him as a witness. (19) We thus hold that under Section 173 of the Code there is no mandate that a police report must enclose the document purporting to be a report under the hand of a Government scientific expert. In the present cases, as cognizance of the offences taken by the Magistrate was proper and valid, no order releasing the petitioners on bail under Section 167(2) of the Code was required to he passed. (20) There is another aspect which needs to be considered. In the petition filed by Kishan Lal, a miscellaneous application was moved seeking that the petitioner be released on interim bail during the pendency of the petition on the ground that the ailments from which he was suffering, could not be treated while he was in Judicial custody. Mr. Teja Singh Sodhi learned counsel fur the State frankly conceded before us that the grievance of the petitioner was correct. We summoned the medical record of Deen Dayal Upadhya Hospital where the petitioner w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the time being in force on granting of bail." (23) It was brought to our notice that on coming into operation of the above provision, a learned Single Judge of this Court during the summer vacation while dealing with the application seeking interim bail of an accused, who had been arrested for an offence under Section 21 of the Ndps Act has held that the added limitations in Section 37 of the Act have necessarily to be read as limitations on the powers of the High Court under Section 439 of the Code. In that case (Cr. Misc. (M) 888/89 entitled Satish Kumar v. U.O.I), the petitioner who was on interim bail granted by this Court and was to surrender on 13th June, 19.89, sought extension of the period to enable him to look after his wife who had not yet recovered from the major operation and who, it was so averred, had been recommended another operation. The learned Single Judge after analysing the provisions of the said Section 37 concluded that : "SINCE the court has no power to grant bail on the ground of illness of the wife, certainly the court has no power to grant interim bail or extension of the period of the interim bail as already granted by this court. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purposes of bail. According to him the limitation added under Section 37 of the Ndps Act are admittedly limitations placed on the powers of the Special Court which being & Sessions Court, while granting bail is to act only under Section 439 of the Code. A fortiori he submits that those limitations have necessarily to be read as limitations on the concurrent powers of the High Court under Section 439 of the Code. (28) At this stage we may not that all the counsel in support of their contentions are relying on a judgment of the Supreme Court in Usman Bhai v. State of GuJarat, 1988 CriL J938. That was a case under the Terrorist and Disruptive Activities (Prevention) Act, 1987. One of the questions which fell for consideration in that case was whether the High Court had jurisdiction to entertain an application for bail of a person accused of an offence under that Act, in exercise of its powers under Section 439 or Section 482 of the Code. In that Act there was no express provision excluding the applicability of Section 439 of the Code although' by virtue of Section 20(7) of the said Act, the power of the High Court or the Court of sessions to grant anticipatory bail had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, follow. It is true that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act as it only places limitations on such power. This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are 'in addition to the limitations under the Code or any other law for the time being in force.' But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. If cannot be doubted that a Designated Court is 'a Court other than the High Court or the Court of Session' within the meaning of Section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to' the limitations placed by Section 20(8) of the Act." (32) The limitations placed under Section 37 of the Ndps Act which are exactly similar to the ones under Sub-sections (8) and (9) of Section 20 of the Terrorist and Disruptive Activities (Prevention) Act, thus, are applicable to Special Courts. Learned counsel are not doubting that legal position. Mr. Aurora's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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