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TMI Blog2022 (8) TMI 1491X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge-sheet has been admittedly filed within a period of 180 days of the remand, but the same is without FSL result of the seized contraband. The said issue is already settled by Hon'ble Delhi High Court in case titled Krishan Lal V. State, 39(1989) DLT 392 and Mohd Arbaz vs. State Cr Rev no. 1219/2019 dated 03.11.2020. The said issue though is now pending qua NDPS Act cases before the Hon'ble Supreme Court and therefore, till that time, the proposition of law as laid by Hon'ble Delhi High Court in Krishan Lal (supra) case holds field. The amount of quantity recovered from the accused/applicant falls under the category of commercial quantity and bar under 37 of the NDPS Act is also applicable. Therefore, the onus is upon the applicant to satisfy the twin conditions imposed as mandated in judgment viz.; Union of India through NCB Lucknow V. Nawaz Khan, Crl. Appeal No. 1043/2021. The judgments relied upon by Ld. Counsel for the accused/applicant are not applicable to the present case being distinguishable on facts. In view of the above facts and circumstances of the case, I am of the considered view that no ground is made out for grant of bail to accused/applicant. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-- [(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where no order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2): Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led 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 made. If the accused applies for bai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution. 17.1. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law . It has been settled by a Constitution Bench of this Court in Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248], that such a procedure cannot be arbitrary, unfair or unreasonable. The history of the enactment of Section 167(2) CrPC and the safeguard of default bail contained in the proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law. 17.2. Under Section 167 of the Code of Criminal Procedure, 1898 ( the 1898 Code ) which was in force prior to the enactment of the CrPC, the maximum period for which an accused could be remanded to custody, either police or judicial, was 15 days. However, since it was often unworkable to conclude complicated investigations within 15 days, a practice arose wherein investigating officers would file preliminary charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n note of and incorporated by the Central Government while drafting the Code of Criminal Procedure Bill in 1970. Ultimately, the 1898 Code was replaced by the present CrPC. The Statement of Objects and Reasons of the CrPC provides that the Government took the following important considerations into account while evaluating the recommendations of the Law Commission: 3. The recommendations of the Commission were examined carefully by the Government, keeping in view, among others, the following basic considerations: (i) an accused person should get a fair trial in accordance with the accepted principles of natural justice; (ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and (iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community. 17.6. It was in this backdrop that Section 167(2) was enacted within the present day CrPC, providing for time-limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lieu of a written application. This was based on the reasoning that the court should not be too technical in matters of personal liberty. Madan B. Lokur, J. in his majority opinion, pertinently observed as follows: (SCC pp. 95-96 99, paras 29, 32 41) 29. Notwithstanding this, the basic legislative intent of completing investigations within twenty-four hours and also within an otherwise time-bound period remains unchanged, even though that period has been extended over the years. This is an indication that in addition to giving adequate time to complete investigations, the legislature has also and always put a premium on personal liberty and has always felt that it would be unfair to an accused to remain in custody for a prolonged or indefinite period. It is for this reason and also to hold the investigating agency accountable that time-limits have been laid down by the legislature. ... *** 32. ... Such views and opinions over a prolonged period have prompted the legislature for more than a century to ensure expeditious conclusion of investigations so that an accused person is not unnecessarily deprived of his or her personal liberty by remaining in prolonged custody for an offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsets of the overarching fundamental right guaranteed under Article 21. 17.11. Hence, it is from the perspective of upholding the fundamental right to life and personal liberty under Article 21 that we shall clarify and reconcile the various judicial interpretations of Section 167(2) for the purpose of resolving the dilemma that has arisen in the present case. 9. In the present case, the charge sheet was filed on 03.03.2021, however, without the FSL report. The charge sheet was thus filed within the limitation period prescribed under law. The question in dispute narrows down as to whether the FSL report forms part of the charge sheet and is an essential prerequisite to file with the charge sheet. FSL Report not part of the Charge Sheet 10. In Kishan Lal vs. State, 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. The observation reads as follows:- ... 5. The question raised by the petitioners in a nut shell is whether the investigation of a case under the NDPS Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al vs. State (supra), a Coordinate Bench of this Court in a recent judgment of Babu vs. The State (Govt. Of NCT of Delhi) BAIL APPLN. 2075/2020 dated 25.09.2020, observed as under:- ...18. 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 (supra), 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... 12. A similar view was followed by the Coordinate Bench of this Court in Mohd. Arbaz vs. State of NCT of Delhi CRL. REV. P. 1219/2019 on 03.11.2020, 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 rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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