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TMI Blog2020 (9) TMI 1306X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 167(2) CrPC. The petitioner was not represented by a lawyer engaged by him and the learned Trial Court though provided him with legal aid on the first day of remand before it i.e. 7th December, 2019, however, thereafter, no advocate appeared for the petitioner. As the petitioner was unrepresented by the legal aid counsel, he was not advised to file an application seeking statutory bail after expiry of the stipulated period of 60 days under Section 167(2)(a)(ii) CrPC and before the filing of the charge sheet. Admittedly, the charge sheet was filed on 13th February, 2020 and that too, without the FSL report which could have opined that the alleged recovery from the petitioner was of Heroin. Thereafter, the petitioner filed an application for regular bail which came up before the learned Special Judge on 22nd July, 2020 and was dismissed. Even in the said petition, from the impugned order dated 22nd July, 2020, it is not evident that the learned Trial Court considered the aspect of grant of default bail to the petitioner. Hence, the present petition seeks regular bail in view of the charge sheet not having been filed within the statutory period of 60 days under Section 167(2)(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sheet is not filed within the statutory period, the order of remand for judicial custody passed by the learned Special Court would be an illegality and the accused would be entitled to the default bail under Section 167(2)(a)(ii) Cr.P.C., for which the accused is required to file an application seeking default bail before the charge sheet is filed. 7. Constitution Bench of the Hon'ble Supreme Court, in the decision reported as (1994) 5 SCC 410 Sanjay Dutt Vs. State Through CBI, Bombay (II), following the decision reported as AIR 1994 SC 2623 Hitendra Vishnu Thakur and Ors. Vs. State of Maharashtra and Ors. held that, if before application seeking default bail is filed by an accused, the charge sheet is filed, the accused will not be entitled to the bail under Section 167(2)(a)(ii) CrPC. It was also held that the indefeasible right of the accused to be released on bail for non filing of the charge sheet within the statutory period under Section 167(2) CrPC, is a right which enures to and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remains enforceable on the challan being filed. 8. In the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in paragraph 474 of the Report as follows: "474... it is the duty and obligation of the Magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the Magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the Magistrate concerned liable to departmental proceedings." 44. Strong words indeed. That being so we are of the clear opinion that adapting this principle, it would equally be the duty and responsibility of a court on coming to know that the accused person before it is entitled to 'default bail', to at least apprise him or her of the indefeasible right. A contrary view would diminish the respect for personal liberty, on whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are today compelled to acknowledge and enforce. 47. Consequently, we are of opinion that 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". 10. The facts of the present case are undoubtedly distinguishable from the facts in Rakesh Kumar Paul (supra) 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. 11. In the decision reported as AIR 1994 SC 2623 Hitendra Vishnu Thakur and Ors. Vs. State of Maharash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Examiner's report and for this reason, the Chemical Examiner's report assumes an immense significance for the Trial Court to formulate an opinion as the very cognizance of an offence would depend on it. Therefore, it was held that the non-inclusion of the Chemical Examiner's opinion in the report under Section 173 CrPC would expose the accused to unfounded dangers imperiling and endangering his liberty since the provisions of the NDPS Act in its applicability to a trial and conclusion are stringent in consequence. The Division Bench of the Punjab and Haryana High Court held that for this reason as well, it is essential that the report of the Chemical Examiner be included in the report under Section 173 CrPC and without which, it can, at best, be termed to be an incomplete challan depriving the Magistrate of relevant material to take cognizance and if it is not submitted within the statutory period, the accused will be entitled to the benefit of default bail unless an application is moved by the Investigating Agency apprising the Court about the status of investigation with a prayer for extension of time to the satisfaction of the Court. The Division Bench of the Punjab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t determining the nature and content of the contraband, it would be draconian to propel an accused into the throes of a trial. The liberty of an individual would constantly be imperiled at the hands of dubious officials of the police who may venture to falsely implicate a person. It is for this reason that we would unhesitatingly conclude that the Chemical Examiner's report is an essential; integral and inherent part of the investigation under the N.D.P.S. Act as it would lay the foundation of an accused'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. We are conscious of the fact that these issues have arisen largely on account of the inability of the State to provide the Chemical Examiner's report in time ostensibly for the reason that it is not equipped with enough laboratories to examine the contraband but for that, it is the State which has to be faulted and it would do well to hone up its own infrastructure so that the accused who deserves punishment, does not get the benefit of law and go scot free and gain access to a undeserving l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplete 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 second report, i.e., the report of 5th October, 1949 were not the witnesses who were "Acquainted with the circumstances of the case" but merely formal witnesses who had either examined the injured or recorded the dying declaration. It further appears that vide the report dated 19th October, 1949 which was termed as "supplementary challan", the report of the Imperial Serologist and the drawing of a sketch map of the occurrence were sought to be placed on the record-Negativing the contention that the Magistrate had not taken proper cognizance, it was held that the police repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners. 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 Code 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 be held to be incomplete. In our view the Supreme Court decision in Tara Singh's case (supra) holding, inter alia that a police report which is not accompanied by the expert's opinion, is to be held to be complete report as long as the witnesses who are acquainted with the circumstances of the case have been examined, continues to be law in spite of amendments in Section 173 of the Code. (17) Now to advert to the main plea it is contended that for offences under the NDPS Act, the report under Section 173(2) of the Code, which in law is complete (the investigating officer havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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". 17. As noted above, the Division Bench of this Court relied upon the decision of the Supreme Court (1951) 2 SCR 729 Tara Singh Vs. State which did not relate to an offence punishable under NDPS Act. A distinction can clearly be drawn between the cases relating to offences under the Indian Penal Code and offences under NDPS Act, for the reason, in a charge sheet filed without a FSL report, say for example, for an offence punishable under Section 302 IPC, the prosecution cites witnesses who may be the eye witnesses or of circumstantial evidence besides the post-mortem report, MLC etc., which material in itself is sufficient to constitute the ingredients of the offence(s) alleged by the prosecution. The FSL report in the said charge sheet only supplements the material already filed by the prosecution. This is in contradistinction to an offence punishable under NDPS Act where the possession of the contraband itself is an offence and if the prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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