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TMI Blog2020 (11) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as such if it is not accompanied by a Chemical Examiner s Report with regard to the substance recovered? - HELD THAT:- In Mehal Singh [ 1978 (4) TMI 240 - PUNJAB AND HARYANA HIGH COURT] , the full Bench of the Punjab and Haryana High Court examined the question whether the investigation of an offence could be considered complete in terms of Section 173(2) of the Cr.P.C., even though the police officer investigating the case had not received the reports of experts such as the chemical examiner, the serologist, the ballistic expert or the finger print expert, which are admissible in law under Section 293 of the Cr.P.C. And, whether such a chargesheet would qualify to be termed as a police report in terms of Section 190(1)(b) of the Cr.P.C. to enable a Magistrate to take cognizance of the offence disclosed therein. The Court referred to the decision of the Supreme Court in Noor Khan v. State of Rajasthan: AIR 1964 SC 286 and observed that it was deducible from the said decision that it is not incumbent upon the investigating officer to reduce in writing the statements of witnesses. The Court held that he may merely include their names in the list of witnesses in support of the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the offence or character of the offender. The impugned order, which is premised on the basis that the court would have to consider the question of default bail at the point when the application is taken up for consideration is unsustainable - As explained by the Supreme Court in Nirala Yadav [ 2014 (6) TMI 1018 - SUPREME COURT] , the accused can avail his liberty only by filing an application stating that the statutory period for filing of the challan has expired, the same has not yet been filed, and an indefeasible right has accrued in his favour and further he is prepared to furnish the bail bond. Once such an application is filed, it is obligatory on the part of the court to verify from the records as well as the public prosecutor whether the time has expired and the charge-sheet is filed or not . The moment the accused makes such an application, the court is required to only examine whether the conditions as prescribed under Section 167(2) of the Cr.P.C. have been met when the application is made. If they are, then the power of the court to remand is lost and the accused has to be granted bail. In this view, this Court is unable to concur with the reasoning of the Special Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing questions fall for consideration of this Court: (i) Whether in a case of commission of an offence punishable under the provisions of the NDPS Act, which is founded on recovery of narcotic drugs and/or psychotropic substance, a police report under Section 173(2) of the Cr.P.C. can be considered as such if it is not accompanied by a Chemical Examiner's Report with regard to the substance recovered, and; (ii) Whether an accused would be entitled to bail in default under Section 167(2) of the Cr.P.C. where his application for such bail has been filed prior to the submission of the report under Section 173(2) of the Cr.P.C. but is taken up for consideration simultaneously with the said report being filed. 5. The relevant facts necessary to address the aforesaid controversy are set out below: 5.1. It is alleged that on 16.12.2018 at about 09:00 pm, information was received through a special messenger at the office of Special Cell, Sector-7, Pushp Vihar, New Delhi-that one Abdul Rashid (petitioner in Crl. Rev. P. 1220/2019), who is a resident of Bhilwara, Rajasthan and deals in the business of narcotic drugs (Heroin) would arrive near Ambedkar Park, Sector 12, R.K. Pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agency had failed to file the complete police report under Section 173(2) of the Cr.P.C. within the stipulated period of one hundred and eighty days as the report filed 27.05.2019 was not accompanied with the Chemical Examiner's report and therefore, was incomplete and could not be considered as a report under Section 173(2) of the Cr.P.C. Further, it had neither sought extension of the said period in terms of Section 36A(4) of the NDPS Act nor any such permission was granted. It is stated that the said application was filed in the Registry at about 10:00 am. 5.6. On the same day, the petitioners were produced before the Special Court. And, the learned Additional Public Prosecutor filed the Chemical Examiner's Report and supplied a copy of the same. At that time, the applications were filed by the petitioners at 10:00 am on the same date were not before the Court and therefore, the hearing of the matter was deferred till 02:00 pm on that date. The applications were heard and orders were reserved. 5.7. The applications filed by the petitioners were dismissed by the Special Court by a common order dated 20.08.2019, which is impugned in the present petition. 6. The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45, in support of his contention. 8. Mr. Nayak, learned APP for the State countered the aforesaid submissions. He submitted that the decision in the case of Ajit Singh @ Jeeta (supra) cannot be considered good law as the said decision is contrary to the decision of the Full Bench of the Punjab and Haryana High Court in State of Haryana v. Mehal Singh and Ors.: AIR 1978 P&H 341. He further referred to the decision in Himmat Singh v. State of Rajasthan: (1995) Crl. LJ 2967, whereby the Rajasthan High Court had not accepted the reasoning of the Division Bench of the Punjab and Haryana High Court in Ajit Singh's (supra) case. He also referred to the decision of the Division Bench of this Court in Taj Singh v. The State (Delhi Admn.): (1988) Crl. LJ 1634 and the decision of the Supreme Court in Tara Singh v. State: (1951) AIR SC 441 in support of his contention. 9. It is apparent from above that there are divergent opinions whether a report under Section 173(2) of the Cr.P.C. could be considered as a complete report in absence of the Chemical Examiner's Report/FSL Report. There appears to be no dispute that absence of the Chemical Examiner's Report/FSL Report or an Expert& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncomplete if not accompanied by the report of experts such as chemical analyst, serologist, ballistic expert, fingerprint expert etc. stands on a weaker ground. 12. In Mehal Singh (supra), the Court also referred to the decision of the Supreme Court in Tara Singh v. The State: (1951) SCR 729. However, in Ajit Singh @ Jeeta (supra), the Division Bench of the Punjab and Haryana High Court distinguished the aforesaid decisions. It observed that the courts in those decisions had interpreted the scope of the Cr.P.C. in the backdrop of general offences confined to the Indian Penal Code, 1860 (hereafter the 'IPC') and some other statutes; but the Courts were not ceased of a matter relating to a special act such as the NDPS Act, which although raises a similar question but requires to be addressed keeping in view the specific provisions of a special act. The Division Bench, thereafter, referred to various provisions of the NDPS Act and observed as under: "What would also necessary flow from this, would be a prima facie opinion by the Court of the commission of an offence which under the N.D.P.S. Act would revolve around establishing the possession of contraband, its nature, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused's culpability without which a Magistrate would not be enabled to form an opinion and take cognizance of the accused's involvement in the commission of offence under the Act." 13. The Division Bench of the Bombay High Court took a similar view in Sunil Vasantrao Phulbande (supra). The Court reasoned that in a case involving seizure of contraband, the prosecution's case would rest on the substance seized being either a narcotic drug or a psychotropic substance. And, a police report under Section 173 of the Cr.P.C. which is not accompanied by a Chemical Examiner's report could not be contemplated as a chargesheet/report under Section 173(2) of the Cr.P.C., as the Magistrate would not be in a position to take cognizance of the offence. The relevant extract of the said decision embodying the reasoning of the Court is set out below:- "15. In the instant case, it is not in dispute that report of Chemical Analyser is the foundation on the basis of which Magistrate can proceed to take cognizance of the offences. The contraband, which is seized in the present case, is Ganja and unless and until sample, which was drawn by the prosecution, conforms with the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar case, Ranjeet Manohar Machrekar (supra) was prosecuted under section 20(b) of N.D.P.S. Act. When the chargesheet was filed, it was without report of the Chemical Analyzer. The learned Single Judge of this Court has considered that section 167(2) of Cr.P.C. does not speak about the filing of the chargesheet, but refers to the completion of investigation. It is further explained that without collection of any evidence i.e. report of Chemical Analyzer, how the investigation in respect of psychotropic substances could be said to be completed in the absence of such Chemical Analyzer's report, where the material is seized and then the chargesheet is filed in the Court. The investigation was not completed for want of evidence on most vital aspect of the prosecution case and then the bail was allowed to the accused under section 167(2) of Cr.P.C., as modified by sub-section (4) of Section 36A of the N.D. RS. The present case is identical and therefore the ratio laid down in the Ranjeet Machrekar (supra) is squarely applicable to the present case. In the present case also the chargesheet is filed without report of Chemical Analyzer." 15. In Ravinder v. State of Haryana: 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the Division Bench of the Bombay High Court in Sunil Vasantrao Phulbande's case (supra) on the ground that in that case there was no mention of the samples of the seized material being tested at the spot by using a Field Testing Kit. The Court also referred to the decision of the Supreme Court in Jagdish Budhroji Purohit v. State of Maharashtra: (1998) 7 SCC 270, wherein the Court had upheld the conviction on the reasoning that the evidence on record was sufficient to convict the appellants even if the Chemical Examiner's reports were ignored. 17. This Court is unable to respectfully concur with the view that statements made to the effect that the seized substance tested on a Field Testing Kit had yielded positive results indicating the substance to be a narcotic drug or psychotropic substance, are sufficient to take cognizance of an offence which is premised on recovery of a narcotic drug or a psychotropic substance. First of all, the results from a Field Testing Kit are not conclusive and there is considerable scope of error. Clearly, in such circumstances the oral statements/testimony of witnesses that the substance had yielded a positive result for a narc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the allegation of commission of an offence is founded predominantly on the recovery of an illicit substance. Unless, there is evidence to establish the identity and nature of the said substance, it would not be feasible for any court to take cognizance of an offence. Till recently, it was also necessary to ascertain the purity of the illicit substance for the purposes of determining the punishment imposable for the same, that is, whether it was a commercial quantity or a small quantity. Although, the said view is no longer good law in view of the decision of the Supreme Court in Hira Singh v. Union of India: CRL. A. 722 of 2017, decided on 22.04.2020, it cannot be disputed that the very nature and identity of an alleged illicit substance recovered forms the foundation of certain cases relating to offences under the NDPS Act. In such cases, the Chemical Examiner's report is of primary importance. In such cases the police report would be insufficient to take cognizance of the offence if the same is not accompanied with material (an expert's report on the analysis of the substance) to establish the substance recovered. And, therefore could not be considered as a complete repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Section 173(2) of the Code. The case before the Division Bench was also one under Sections 307/302/34 IPC and Section 25 of the Arms Act, 1959. Distinct from the case before the Bombay High Court, the case before the Division Bench in Taj Singh as well as the present case is not one under the NDPS Act wherein the CFSL Report would be of vital importance for the purposes of the Magistrate taking cognizance. Therefore, the absence of the CFSL report in the facts of the present case would not mean that the challan filed on 20.9.2005 was incomplete." 21. The reasoning in the case of Ajit Singh @ Jeeta (supra); Sunil Vasantrao Phulbande (supra); and Nitin Nagpal (supra) are undoubtedly compelling. It does stand to reason that a report on the basis of which a Magistrate cannot take cognizance of the offence under the NDPS Act, which is founded on recovery of an illicit substance, would be an incomplete report and cannot be considered as a report under Section 173(2) of the Cr.P.C. This is particularly so, because the Chemical Examiner's report in such circumstances would be a vital piece of evidence. An investigation is completed only when evidence is collected. 22. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expert. In our view the submission is entirely misconceived. Apparently the power of the Magistrate to take cognizance of offences upon police report is being related to the duty of the S.H.O. to forward a report on completion of investigation. The duty of the Investigating Officer under the Code is to complete the investigation without unnecessary delay. On its completion which necessarily means that the witnesses acquainted with the circumstances of the case have been examined, the officer incharge of the police station has to forward a police report in a prescribed form to a Magistrate empowered to take cognizance of the offence. However, no duty is cast on the Magistrate to take cognizance of the offence on a report which although complete except for the expert's opinion, does not make out an offence. While exercising his judicial discretion it is open to the Magistrate to seek a copy of the expert's opinion. There may even be cases under the NDPS Act where no public witnesses have been cited but that fact by itself would not show that till such time the Government expert's opinion is received, the investigation is incomplete. The police report if filed in accordanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in Sunil Vasantrao Phulbande (supra),convinced this Court that the view of the Division Bench in Kishan Lal (supra) is binding. 25. In view of the above, the petitioners' contention that the report submitted on 27.05.2019 could not be construed as a report under Section 173(2) of the Cr.P.C. must be rejected. The first question is, thus, answered in the negative. Whether the right to avail bail in default is availed of at the time when the application is filed or when it is considered 26. In view of the above, the question whether the petitioners were entitled to bail in default does not arise. However, for the sake of completeness, this Court considers it apposite to also decide the question whether the applications filed by the petitioners amounted to them availing their right to bail prior to the FSL Report being filed. 27. The Special Court had proceeded on that basis that even though the petitioners may have filed that application at an earlier point of time than the learned Public Prosecutor placing the Chemical Examiner's report on record, the same could only be considered as having been filed when the accused were produced in Court. And, this according to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police." 29. It is clear from the plain language of the aforesaid provision that after the period of sixty days or ninety days as the case may be expires, the Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence, that the purpose of his unauthorised possession of any such arms and ammunition etc. was wholly unrelated to any terrorist or disruptive activity. If the accused succeeds in proving the absence of the said third ingredient, then his mere unauthorised possession of any such arms and ammunition etc. is punishable only under the general law. by virtue of Section 12 of the TADA Act and not under Section 5 of the TADA Act. (2)(a) Section 20(4)(bb) of the TADA Act only requires production of the accused before the court in accordance with Section 167(1) of the CrPC and this is how the requirement of notice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further proviso to Clause (bb) of Sub-section (4) of Section 20 of the TADA Act has to be understood in the judgment of the Division Bench of this Court in Hitendra Vishnu Thakur. The requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the court informing him that the question of extension of the period for completing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt observed as under: "12. …. If an accused charged with any kind of offence, becomes entitled to be released on bail under proviso (a) to Section 167(2), that statutory right should not be defeated by keeping the applications pending till the chargesheets are submitted, so that the right which had accrued is extinguished and defeated". 36. The above observation was made by the Court in the context that in certain cases, courts had been deferring the consideration of applications of bail in default till the investigation is completed and chargesheet are filed. Thus, even though the accused had filed an application for exercising indefeasible right, the delay in considering the same was effectively defeating their rights. In a subsequent case, in Uday Mohanlal Acharya v. State of Maharashtra: (2001) 5 SCC 453, a Bench of three Judges of the Supreme Court, inter alia, considered the question as to the import of the expression "if not already availed of" as used by the Constitution Bench of the Supreme Court in paragraph 48 of the decision in Sanjay Dutt's case. Paragraph 13 of the said judgment (Uday Mohanlal Achaya [supra]) is relevant and is set ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also the so-called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated. Since the legislature has given its mandate it would be the bounden duty of the court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression "if not availed of" in a manner which is capable of being abused by the prosecution. A two-Judge Bench decision of this Court in State of M.P. v. Rustam [1995 Supp (3) SCC 221: 1995 SCC (Cri) 830] setting aside the order of grant of bail by the High Court on a conclusion that on the date of the order the prosecution had already submitted a police report and, therefore, the right stood extinguished, in our considered opinion, does not express the correct position in law of the expression "if already not availed of", u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is no provision in the Criminal Procedure Code authorising detention of an accused in custody after the expiry of the period indicated in proviso to subsection (2) of Section 167 excepting the contingency indicated in Explanation I, namely, if the accused does not furnish the bail. It is in this sense it can be stated that if after expiry of the period, an application for being released on bail is filed, and the accused offers to furnish the bail and thereby avail of his indefeasible right and then an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of time a challan is filed, then possibly it can be said that the right of the accused stood extinguished. But so long as the accused files an application and indicates in the application to offer bail on being released by appropriate orders of the court then the right of the accused on being released on bail cannot be frustrated on the off chance of the Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Magistrate, then on a conjoint reading of Explanation I and the proviso to subsection (2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished. 6. The expression "if not already availed of" used by this Court in Sanjay Dutt case [(1994) 5 SCC 410: 1994 SCC (Cri) 1433] must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same. With the aforesaid interpretation of the expression "availed of" if the charge-sheet is file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Court. This is the position of law as has been stated in Uday Mohanlal Acharya [(2001) 5 SCC 453: 2001 SCC (Cri) 760]." 38. The Court also referred to its earlier decision in Pragyna Singh Thakur v. State of Maharashtra: (2011) 10 SCC 445 and, inter alia, reproduced paragraph nos. 54 and 58 of the said decision, which are set out below: "54. There is yet another aspect of the matter. The right under Section 167(2) CrPC to be released on bail on default if charge-sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge-sheet is filed and would not survive after the filing of the charge-sheet. In other words, even if an application for bail is filed on the ground that charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge-sheet is filed, the said right to be released on bail would be lost. After the filing of the charge-sheet, if the accused is to be released on bail, it can be only on merits. This is quite evident from the Constitution Bench decision of this Court in Sanjay Dutt (2) v. State [ (1994) 5 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down in Paragraph 54 and 58 of Pragyna Singh Thakur's case (which have been underlined by us) do not state the correct principle of law. It can clearly be stated that in view of the subsequent decision of a larger Bench that cannot be treated to be a good law. Our view finds support from the decision in Union of India and others v. Arviva Industries India Limited and Others." 41. In Alamkhan Umarkhan Jatmalek Jenjari Tal, Dashada Dist., Surendranagar and Anr. v. State of Gujarat: (2015) 3 GLH 737, a Single Bench of the Gujarat High Court considered a case where the application for default bail under Section 167(2) of Cr.P.C. was filed at 10:35 on 10.11.2014. The chargesheet was filed on the same date in the evening and the matter was placed for consideration before the Court on the next day, that is, on 11.11.2014. The application for bail in default was rejected by the concerned Judicial Magistrate on 14.11.2014. The Court held that the applicants were entitled to default bail and the subsequent filing of the chargesheet at 04:00 o'clock in the evening would not defeat the indefeasible right of the appellants to be released on bail. 42. A similar view has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused can avail his liberty only by filing an application stating that the statutory period for filing of the challan has expired, the same has not yet been filed, and an indefeasible right has accrued in his favour and further he is prepared to furnish the bail bond. Once such an application is filed, it is obligatory on the part of the court to verify from the records as well as the public prosecutor whether the time has expired and the charge-sheet is filed or not". The question whether an accused has exercised his indefeasible right for seeking bail in default is not contingent upon the time when the said application is heard and decided. So long as the said application has been preferred in the manner as is required-that is, by filing it in the prescribed manner with the court-the accused has done whatever is expected of him for indicating that he is exercising his right. Once having done so, the court is only required to examine whether at that point the petitioner is entitled to bail in default. Any subsequent acts done on behalf of the prosecution would not be relevant for the purposes of determining whether the accused had validly exercised his rights. 46. As not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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