NDPS Act | Failure To Annex FSL Report Within Statutory Period Does Not Make Chargesheet Defective, No Default Bail: J&K&L High Court

The observations were made by Justice Sanjay Dhar while hearing a plea in terms of which the petitioner had invoked the jurisdiction of the Court under Section 439 of J&K Cr. P. C for offences under Section 8/15, 18 of the Narcotic Drugs and Psychotropic Substances Act, registered with Police Station, Srigufwara, Kashmir.

In his plea the petitioner averred that the charge sheet against him had been filed before the Court of Principal Sessions Judge, Anantnag, on 7th October, 2021 but at the relevant time, the FSL report was not accompanying the charge sheet. Petitioner contended that despite directions extended from time to time by the Sessions Judge, the FSL report was not filed even after the expiry of 180 days of arrest of the petitioner and because there was an incomplete and defective charge sheet before the Sessions Judge, as such, the petitioner had become entitled to default bail but his application for the the same was rejected by the session judge.

The moot question that fell for adjudication was as to whether a charge sheet filed without FSL report qualifies to be a defective charge sheet and if so, whether an accused, who has been in custody for more than 180 days prior to the filing of FSL report before the Court, is entitled to default bail.

Adjudicating upon the matter Justice Dhar observed that from a conjoint reading of Section 36A of NDPS Act and Section 167 of Cr. P. C, it becomes clear that if an accused has been detained in connection with investigation of a case for a period of more than 180 days in an offence under NDPS Act, he is entitled to be released on bail if he is prepared to and does furnish bail unless the Special Court has extended the period of detention during investigation of the case beyond 180 days.

"The analysis of these two provisions clearly shows that a report of the FSL is not filed charge sheet is not vitiated merely because within the period prescribed under Section 167 of the Cr. P. C", the bench explained.

Also Read: NDPS Act | MP High Court Denies Default Bail Despite FSL Report Not Being Submitted With Chargesheet, Differs From Punjab & Haryana HC

Fortifying the adopted position the bench recorded the observations of Karnataka High Court in Mr. Sayyad Mohammad v. State of Karnataka and another wherein it was observed that the petitioner does not get a right to demand default bail under Section 167(2) of the Cr.P.C. merely because the charge sheet/final report filed by the police after investigation is without FSL report, as nonfiling of the FSL report by itself would not make the charge sheet contrary to Section 173(2) of the Cr.P.C.

Elaborating on the law applicable to the matter the bench observed that Section 173 of the Cr.P.C provides that an officer incharge of the police station has to forward to the Magistrate empowered to take cognizance of the offence, the report of the police after completion of the investigation. Sub-Section (2) provides the particulars which are mentioned in the final report and Sub-section (8) of Section 173 clearly states that the investigating agency is not precluded from undertaking further investigation of the case and to forward further reports regarding evidence which may be collected during further investigation.

Expounding further Justice Dhar recorded that it is not that after completion of investigation of the case and presentation of final report before the Magistrate that the investigating agency is precluded from collecting further evidence and producing it before the competent court and accordingly it may not be correct to hold that merely because certain report of expert is not accompanying with the final report, the said report is defective or incomplete.

"Thus, it can safely be stated that the charge sheet in the instant case has been filed within the statutory period of 180 days of arrest of the petitioner and the same without annexing with it the FSL report cannot be termed as defective or incomplete. Hence, the petitioner is not entitled to compulsive bail", said the court while dismissing the plea.

Also Read: 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

Case Title : Abdul Majeed Bhat Vs UT of J&K

Citation : 2022 LiveLaw (179)

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