[NDPS Act] Merely Filing FSL Report With Chargesheet Not Ground To Cancel Default Bail, Special Reasons Must Be Shown: Punjab & Haryana HC

The Punjab and Haryana High Court has made it clear that the mere filing of an FSL report with the chargesheet in a NDPS case will not be a ground to cancel default bail granted to an accused.

Justice Deepak Gupta observed, "...it is made clear that merely filing the FSL report along with the challan in itself will not be considered a reason for cancelling the default bail." 

However, the bench added that since default bail is not granted on merits, it may be canceled after the filing of a chargesheet if a strong case is made against the accused for a non-bailable offence.

The Court reiterated that default bail is an indefeasible right and cannot be defeated solely by the filing of a chargesheet.

These clarifications comes in a plea filed by one Bharat Kumar under Section 482 of CrPC to set aside the order passed by ASJ Jhajjar granting him only interim bail "till the filing of the challan and the FSL report" on an application filed under Section 167(2) CrPC for default bail.

Kumar was booked under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 after the police found him in possession of 21.54 grams of MDMA.

As the investigating agency failed to file the report under Section 173(2) of the CrPC within 90 days, extendable up to 180 days, Kumar applied for default bail after spending 196 days in judicial custody.

The ASJ allowed the application to the extent that the petitioner was granted interim bail until the FSL report was presented to the Court along with the challan.

The counsel for the petitioner contended that Section 167(2) of the CrPC does not envision any interim bail until the presentation of the challan. In case the prosecution fails to file the chargesheet under Section 173 of the CrPC within the prescribed period, the accused has a statutory right to be released from custody.

Considering the submissions, the Court stated that the indefeasible right to the grant of default bail under Section 167(2) of the CrPC cannot be defeated, even if the charge sheet has been filed by the investigating agency subsequent to the filing of the application seeking default bail.

Referring to the State through Central Bureau of Investigation Vs. T. Gangi Reddy @ Yerra Gangi Reddy, the bench said, "merely on filing of the charge-sheet, a default bail granted under Section 167(2) CrPC cannot be canceled, but if on the basis of the charge-sheet, a strong case is made out and on special reasons being made out from the charge-sheet that the accused has committed a non-bailable crime and considering the grounds set out in Section 437(5) and Section 439(2) CrPC, then his bail can be canceled on merits..."

Consequently, the Court modified the order to the extent that though the petitioner is admitted to default bail under Section 167(2) Cr.PC, "but it can be canceled in case prosecution is able to make out a strong case that accused has committed a non-bailable crime and by considering the grounds set out under Sections 437(5) and Section 439(2) CrPC."

Appearance:  Rakesh Nehra, Sr. Advocate, Advocate Himani Anand for the petitioner.

Vipul Sherwal, AAG, Haryana.

Citation: 2023 LiveLaw (PH) 172

Case Title: Bharat Kumar v. State of Kumar

Click here to read/download the order.