"Is Investigation In NDPS Cases Complete Without Forensic Report Of Recovered Substance?" Supreme Court To Consider On 13th December

The Supreme Court on Saturday posted for 13th December plea filed raising legal questions including 'whether investigation in NDPS cases can be considered to be completed in absence of a forensic report of the substance recovered'.

The Court will consider whether in NDPS Cases, chargesheet is complete or not in cases where FSL report of the substance recovered isn't filed.

A Bench comprising CJI NV Ramana, Justice Surya Kant and Justice Hima Kohli was hearing a special leave petition against order passed by the Delhi High Court refusing to enlarge the petitioner accused under the NDPS Act, on statutory bail.

The Bench was initially only inclined to decide on the question of grant of bail, and consider the legal issues involved on a later date.

However, ASG Aman Lekhi submitted that the question of whether chargesheet is complete or not on non submission of the FSL needs to heard as there are conflicting judgements.

The Bench then decided to list the matter on Monday (13th December) to decide on the issue.

"Unless we decide whether it's complete chargesheet or incomplete chargesheet because of non filing of FSL report, that has to be heard. Monday after admission matters we'll take it up," the Bench said.

The Bench was also informed by Advocate Rudro Chatterjee appearing for the petitioner that they are only claiming default bail in the present matter.

On 11th November, Supreme Court had issued notice in the matter. The Bench had posed a question in relation to the case to Senior Advocate Sidharth Luthra, who was present in the court during the hearing, and asked him to apprise the court with judgements in that regard.

"This Question in these NDPS cases where without the chemical analysis report, the charge sheet is filed, can it be treated as charge sheet filed within the time?", the Bench had asked.

Before dismissal of petitioners' bail plea by the High Court, their default bail applications under Section 167 Cr.P.C. were earlier dismissed by Additional Sessions Judge cum Special NDPS Court through an order dated 20.08.2019.

The Petitioners raised the contention of becoming entitled to statutory bail on account of the inability of the investigation agency to complete the investigation within the statutorily permitted time frame of custody has not been per se rejected by either of the courts below.

The present Petition has raised the following questions for the Court to decide:

•  Whether in a case that solely and entirely depends on the nature and identity of a recovery from the accused, investigation can be stated to have been completed even though no evidence whatsoever has been collected to establish the identity, nature, contents etc. of the recovery.
•  Whether there is at all any limitation on time allowed for completion of investigation by Police or it has been placed only on the period of detention of an accused pending completion of the investigation.

According to the petitioner, this question often arises in the context of the Narcotic Drugs and Psychotropic Substances Act, 1985 including the present case.

The petitioner has argued that Supreme Court's intervention is required in this to ensure uniformity in the application of a Special central law across different states, since there are divergent opinions of different High Courts as well as inter-se conflicts between benches of the same High Courts, on these questions

The petitioner has argued that Supreme Court's intervention therefore would also be in the interest of judicial comity amongst the different High Courts and subordinate courts.

The petitioners have submitted before the Apex Court that while Special Court had rejected the application on the ground of delay in its filing, the High Court of Delhi on its part reversed the said finding but denied relief by relying on a previous decision of the said High Court, holding that in the facts of the present case, investigation cannot be stated to have remained incomplete at the relevant time.

The petitioners have argued that both the Special Court and the High Court have committed gross illegality in denying the Petitioners their Fundamental Right to Statutory Bail under Section 167 (2) of the Code, despite the investigation having remained incomplete until long after the maximum period permitted in law was over.

In the present case, the Petitioners were arrested under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in Delhi, and allegedly 30 Kilograms of narcotic drug - 'Heroin' was recovered from them.

According to the petitioners, the statutory period of 180 days for detaining the Petitioners pending completion of investigation expired on 15.06.2019, but neither the FSL Report was filed nor did the prosecution file any application seeking extended custody pending completion of the investigation.

Therefore, it has been argued that on the subsequent day itself upon the lapse of the statutory period of maximum permissible detention pending completion of the investigation, the custody of the Petitioners became illegal and they consequently became entitled to be released on Default bail.

Case Title: Mohd Arbaz vs State of NCT of Delhi, (SLP Crl 8165-8166/2018)

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