[NDPS Act] Accused Entitled To Default Bail If Forensic Report Not Submitted With Chargesheet Within 180-Day Limit: Calcutta High Court

The Calcutta High Court while dealing with an application for bail in an NDPS matter has allowed the application made by the petitioner, who sought default bail on the grounds that the chargesheet submitted against him was submitted without a forensic report, within the statutory limit of 180 days.

A division bench of Justices Arijit Banerjee and Apurba Sinha Ray held:

In view of the undisputed fact that in the present case the chargesheet, although filed within the period of 180 days, was not accompanied by the FSL report, and that the FSL report was filed as part of a supplementary charge-sheet filed beyond 180 days from the date of arrest of the petitioner and after he applied for statutory bail, we have to hold that upon expiry of 180 days, the petitioner became entitled to statutory bail/default bail, and the learned Trial Court erred in not extending that privilege to the petitioner.

The petitioner was charged with offences punishable under Sections 21C/25/27A/29 of the NDPS Act, 1985. He was arrested on January 31, 2024. He argued that he became entitled to statutory bail on the 181st day since the charge sheet that was submitted on the 177th day without the FSL report, is not a valid charge sheet.

It was argued that the FSL report was not submitted, whether by way of a supplementary charge sheet or otherwise within 180 days. He had applied for default bail on the 183rd day and the plea for bail was rejected by the learned Trial Court. Hence, this present application for bail.

Advocate for the state submitted that if the charge sheet contains details required under Section 173 Cr. P.C. and is filed within the period prescribed, it cannot be termed incomplete in the absence of FSL report. Counsel said that a supplementary charge sheet has been filed after obtaining FSL report. The seized articles have tested positive for the presence of narcotics.

Upon considering the arguments of the parties, the court noted the provisions of Section 36-A (4) of the NDPS Act:-

“36-A. Offences triable by Special Courts. - (4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27-A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973(2 of 1974) thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”.

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of accused beyond the  said period of one hundred and eighty days.”

Court also perused Section 167 of the CPC which prescribes the maximum period for which an accused can be remanded to judicial custody without charge sheet being filed. Section 36A(4) of the NDPS Act prescribes that reference to “90 days” in Section 167(2) Cr. P.C. shall be construed as reference to “one hundred and eighty days” for the purpose of NDPS cases. 

Therefore, in an NDPS case, if charge sheet is filed within 180 days from the date of arrest of the accused, no right of statutory bail accrues in favour of the accused. The question is, what happens if the charge sheet is not accompanied by the Forensic Report? Would such a charge sheet satisfy the requirements of Section 36A (4) of the NDPS Act? the Court considered.

It noted that there was a difference of opinion on the issue between a division bench of the Calcutta High Court, which noted that a charge sheet without a forensic report would be a futile exercise, and other High Court's which upheld the validity of charge sheets filed without a forensic report u/s 167(2) CrPC. The Court said:

We, therefore, see that while Jammu and Kashmir High Court as well as Bombay High Court have taken the view that the right of statutory bail does not accrue in favour of an accused if a charge sheet containing the particulars mentioned in Section 167(2) Cr. P.C. is filed within the stipulated time period, even if the charge sheet is not accompanied by the FSL report.

However, a Division Bench of the Calcutta High Court has taken a contrary view. Judicial discipline warrants that for the time being, we follow the view taken by a Coordinate Bench of our Court. The issue is to be finally decided by the Hon'ble Supreme Court before which the matter is pending, it added.

Accordingly, the Court granted bail to the petitioner.

Case: In the matter of: Idul Mia.

Case No: CRM (NDPS) 1359 of 2024

Citation: 2024 LiveLaw (Cal) 228

Click here to read order