Forensic Report Forms Foundation Of Cases Under NDPS Act; In Its Absence, The Prosecution's Case Falls To Ground: P&H High Court

The Bench of Justice Gurvinder Singh Gill observed thus while granting bail to one Vinay Kumar from whose possession, 7000 tablets of 'Clovidol-10 SR' (Tramadol Hydrochloride) were allegedly recovered.

Importantly, the final report/challan submitted in the instant case did not contain the FSL report and in view of that, the High Court came to a conclusion that without the filing of the FSL report, a case under the NDPS act could not stand.

The matter before the Court

After the alleged recovery from the accused/bail applicant, the police investigated the matter and thereafter filed a report under Section 173 Cr.P.C. before the trial Court on March 4, 2021, however, the final report of the police was not accompanied by the report of FSL (Forensic Science Laboratory).

Importantly, the prosecution in the instant matter failed to file the FSL report, even within the period of 180 days, which is mandated for filing of challan as per provisions of NDPS Act read with Section 167 Cr.P.C.

Therefore, when the said period expired on June 20, 2021, the petitioner moved an application under Section 167(2) Cr.P.C. for his release on bail on June 22, 2021 arguing that in the absence of the report of FSL, the challan filed by the police could not be said to be complete.

The said application was considered by the trial Court, however, it went on to dismiss the same vide order dated July 5, 2021, and therefore, the petitioner moved the High Court with the instant bail application, assailing the order of the trial court denying him the bail.

Importantly, the Punjab & Haryana High Court has referred this question - as to whether a challan filed without report of FSL would be an incomplete challan (in an NDPS Case)- to a larger Bench vide order dated September 9, 2020, passed in Julfkar Vs. State of Haryana [2020 (4) Law Herald3188] and the same is pending before the High Court.

In the said case, the Court was deliberating on the following issue

"Whether in a case under the NDPS Act 1985, a challan presented under Section 173 (2) of the Code of criminal Procedure, is an in- complete challan if presented without the report of the chemical Examiner/Forensic Science Laboratory"

Court's observations

At the outset, the Court observed that a case under the NDPS Act can only survive in case the prosecution is able to establish that the article recovered is indeed contraband and the same could only be established on the basis of its chemical examination, which is normally got done through FSL established by the Government.

"In other words, the report of the FSL forms the foundation of the case of the prosecution and in case the same is not there the entire case of prosecution falls to the ground," the High Court added.

However, the Court did take into account the fact that there are in fact some conflicting judgments of the Punjab and High Court, and the matter - as to whether a challan filed without report of FSL would be an incomplete challan - stands referred to a Division Bench and is still sub-judice.

Against this backdrop, the Court extended the concession of bail in terms of Section 167(2) Cr.P.C. to the petitioner, while also keeping in view the fact that the petitioner has been behind bars since the last more than 9 months and is not stated to be involved in any other case.

However, the Court did clarify that the prosecution would be at liberty to move for cancellation of bail/recall of the instant order, in case the reference made to larger Bench in Julfkar's case (Supra) is answered in favor of the prosecution.

Case title - Vinay Kumar @ Vicky v. State of Haryana

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