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TMI Blog2002 (2) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... desh for his work and the said vehicle was returning back on 23-6-2001. On that day, Police officials of Pandharkawada Police Station, District Yavatmal received information that ganja was being transported in the said vehicle. The Police officials made arrangement for search of the vehicle and during the course of search of the vehicle, ganja worth 100 kgs., which was kept in gunny bags, was seized from the vehicle. On 23-6-2001, offences under Sections 20, 22 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 were registered vide Crime No. 3122/2001 against the applicants and they were arrested. On 24-6-2001, both the applicants were produced before the Judicial Magistrate, First Class, Pandharkawada and they were remanded to Police Custody. 4. It is contended by the learned Counsel for the applicants that samples were drawn from ganja, which was seized on 23-6-2001 and same were sent to the Chemical Analyser for necessary analysis at Nagpur on 26-6-2001. Investigation was carried out by the Police. On 4-8-2001, Police filed charge-sheet in the Court in the absence of necessary relevant documents including Chemical Analyser's report. It is further contended by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instant case, though the charge-sheet is filed by the prosecution on 4-8-2001, i.e. within ninety days from the date of first remand of the applicants, the same being incomplete and was not accompanied with the documents contemplated under Sub-section (5) of Section 173 of the Code, cannot be treated as a charge-sheet/report, which would empower the Magistrate to take cognizance of the offences and hence, applicant, are entitled to be released on bail in view of provisions of Section 167(2) of the Code. In order to substantiate his contentions, reliance is placed by the learned Counsel on the judgment of Andhra Pradesh High Court in Matchumari China Venkatareddv and Ors. v. State of Andhra Pradesh, as well as judgment of this Court in Sharadchandra Vinayak Dongre and Ors. v. State of Maharashtra. 7. On the other hand, Shri Dhote, learned Additional Public Prosecutor for the non-applicant, submits that the applicants are not entitled to be released on bail in view of provisions of Section 167(2) of the Code since in the instant case, charge-sheet is filed by the Police in the Court on 4-8-2001, which is well within the stipulated period contemplated under the provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, the question which arises for my consideration in the present case is whether mere filing of charge-sheet within the prescribed time, unaccompanied by material papers as contemplated under Section 173(5) of the Code renders it incomplete and such filing of charge-sheet amounts to failure to file the same, which in turn confers on the accused right to be released on bail under Section 167(2) of the Code since Court is not competent to take cognizance of the offence on the basis of such incomplete charge-sheet/report. 10. The above referred question, in my opinion, is no more res integra and is concluded by the judgment in the case of Matchumari China Venkatareddy and Ors. v. State of Andhra Pradesh ,1994 Cri.L.J. 257 as well as in the case of Sharadchandra Vinayak Dongre and Ors. v. State of Maharashtra, 7997 Cri.LJ. 3329 . 11. Andhra Pradesh High Court in para (9) of the judgment in Matchumari China Venkatareddy and Ors. v. State of Andhra Pradesh, has observed thus : 9. Fairness and reasonable procedure is what is contemplated by the expression procedure established by law in Art. 21 of the Constitution. Section 167(2), Criminal Procedure Code was not there in the old Code. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge-sheet within the stipulated time under the guise of filing defective charge-sheet and then knowing fully well that it will be returned. Until a charge-sheet with all specifications enumerated under Section 173(2) Criminal Procedure Code and accompaniments under Section 173(5) Criminal Procedure Code is filed into the court and the court scrutinises it on its administrative side to satisfy that all such documents are in order and unless the court takes it on record and keeps it on its file for examination for taking cognizance or not, it cannot be said that a police report (charge-sheet) is filed as contemplated under Section 173(2) Criminal Procedure Code. Once the police report is filed, it should be capable of examination for the purpose of judicial determination to take cognizance of the offence and to proceed further into Chapter XVI Criminal Procedure Code and any act short of that cannot be construed as 'taking cognizance'. Similar view is taken by this Court in the case of Sharadchandra Vinayak Dongre and Ors. v. State of Maharashtra, where it has been observed that incomplete charge-sheet cannot be treated as Police report at all as contemplated under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in question. In the given set of circumstances, Police may submit a charge-sheet in the Court though incomplete, but within a stipulated period as contemplated under Section 167(2) of the Code, i.e. sixty days or ninety days, if all the relevant documents are filed in the Court as contemplated under Section 173(5) of the Code, in that event, the accused cannot seek bail in view of provisions of Section 167(2) of the Code. However, in the instant case, Chemical Analyser's report was filed in the Court beyond the period of ninety days, i.e. on 9-11-2001 and, therefore, prosecution in the present case cannot take any advantage in this regard. It is needless to mention that if the Police fails to file charge-sheet/report contemplated under Section 173 of the Code within the stipulated period of sixty days or ninety days, a right is accrued to the accused to seek release on bail and Courts in such situation are expected to dispose of such applications forthwith without granting time to prosecution to fill up the lacuna. 15. In the instant case, the trial Court ought to have disposed of forthwith the application of the applicants whereby release was sought in view of provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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