167(2) CrPC- 'Not Filing Analyst Report Does Not Amount To Incomplete Investigation Unless It Is Solely Relied Upon It': Kerala HC Denies Default Bail To NDPS Accused

The Kerala High Court has held that the investigation cannot be said to be incomplete on sending the requisition to the authority concerned to get the analyst report unless it is a case in which the entire prosecution case relies solely on the analyst report.

The question on the completion of investigation arises to decide on the grant of default bail under Section 167(2) CrPC.

"If the investigating officer already completed the proceedings to get an analyst report by submitting appropriate requisition before the court and the court concerned forwarded the same to the laboratory, it cannot be said that simply because the analyst report is not produced, the investigation is not completed," Justice P.V. Kunhikrishnan remarked.

Background

The accused-petitioner in the present matter is charged for selling narcotic drugs under Section 20(b)(ii)(C), 22(C), and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

On seizing commercial quantities of contraband from the accused's apartment, the prosecution submitted the final report without the analyst report of the contraband so seized within the prescribed period of 180 days.

The accused-petitioner has approached the present Court for grant of default bail because the charge-sheet is incomplete.

Advocate Anitha Mathai Muthirenthy, appearing for the petitioners, submitted that there was no seizure from the petitioner's body. They argue that simply because some contraband articles are seized from the apartment in which the petitioner was found, the petitioner is not responsible for the same.

Highlighting that a final report has been submitted without an analyst report, it is argued that the investigation officer's final report is incomplete without the analyst report and, therefore, that the incomplete final report is filed. It is being argued that an incomplete final report is filed to defeat the right of the petitioner to get bail u/s—167 (2) Cr.P.C.

The Additional Director General of Prosecution opposed the bail application by submitting that the petitioner took the apartment on rent and that commercial quantities of contraband articles, along with weighing machines and packets, were seized from the apartment. Conceding that the analyst report is not submitted along with the final report, the ADGP submitted that an expert could identify hashish oil (contraband) even by sight, which was done in the present case by the Excise Inspector.

It was argued that the purpose of the analyst report is only to corroborate the evidence of these witnesses, which has already been initiated. It is contended that simply because the analyst report is not received and before receiving the same the final report is filed, the petitioner is not entitled statutory bail u/s—167 (2) Cr.P.C.

The ADGP also informed the Court that there are only four labs in Kerala to analyze these contraband articles with an increased workload, due to which the analyst report is not obtained. Moreover, it is also submitted that there was no sufficient staff in the laboratories because of the pandemic situation. Therefore, the lab authorities were not able to complete the analysis in time.

It is argued that the petitioner cannot take advantage of the above situation.

Findings

The Court observed that simply because there is no seizure from the petitioner's body, he cannot escape from the liability. The burden is on the petitioner to establish that he was not in conscious possession of the contraband articles. However, the Court restrained from deciding on this issue when hearing a bail application under Section 439 CrPC.

On the question of an incomplete final report in the absence of the analyst report, the Court delved into whether the investigation in the present matter can be said to be complete. Relying on the definition of 'investigation' as given under Section 2(h) of Cr. P.C, the Court noted that when the investigating officer has taken proceedings to get the analyst report by submitting requisition before the Court, it cannot be said that the investigation is incomplete simply because the analyst report has not been received from the laboratories.

The Court remarked,

"The investigating officer reported that the requisition for getting the analyst report is already submitted before the authority concerned, and the lab report is awaited; it cannot be said that the investigation is incomplete. But if the investigating officer is mainly relying upon a lab report to prove his case, and even in such a situation, a final report is filed without the report, it cannot be said that it is a final report as contemplated under law."

It was held that if the investigating officer, after the investigation, concluded that the offence alleged against the petitioner is maintainable based on the documents submitted before the Court, it can be treated as a complete report u/s.173 Cr.P.C.

Refusing to grant bail, the Court took serious note that there are only four authorized laboratories in Kerala to analyze the contraband articles.

It directed the State Government to consult the Central Government to increase the number of labs to an adequate number.  

Title: Sameer v. State of Kerala 

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