NDPS Act | FSL Report Only Corroborative Evidence, Its Non-Filing With Chargesheet No Ground For Bail: Allahabad High Court

A bench of Justice Rohit Ranjan Agarwal said so while rejecting the second bail plea of an accused who was allegedly apprehended from a DCM truck in November 2024 carrying 151.600 kilograms of ganja, and was thus found in conscious possession of contraband above the commercial quantity threshold.

Case background

A charge sheet was submitted against the accused on 31 December 2023 and charges were framed on 12 January 2024. The FSL report confirming the seized substance as ganja was received on 2 December 2023 and it was made a part of case diary on June 19, 2024.

His first bail plea was rejected on 12 August 2024 by the HC noting that a huge quantity of contraband was recovered which attracted the rigour of Section 37.

In his second bail application, Randhir contended that he was only a cleaner earning Rs. 500 per day and had no link with the contraband. He argued that the mandatory provisions of Section 50 were not complied with, and that the charge sheet filed without annexing the FSL report was incomplete.

It was submitted that the Investigating Officer did not prepare representative samples from each bag and that since the FSL report was absent from the charge sheet, this fact vitiated the prosecution.

The Additional Government Advocate, on the other hand, opposed the plea as it was submitted that the accused was sitting in the vehicle in conscious possession of contraband above commercial quantity. It was stated that 80 grams each were sampled from all eight bags and sent to the FSL, which confirmed the seized substance as ganja.

The State argued that the charge sheet filed on 31 December 2023 was complete, and further investigation regarding the vehicle owner was continuing under Section 173(8) CrPC. It was further submitted that the FSL report, though not annexed, was made part of the case diary and thus, the same was admissible under Section 293 CrPC.

High Court's order

The High Court, at the outset, noted that in offences involving commercial quantity, bail cannot be granted unless the Court is satisfied there are reasonable grounds to believe the accused is not guilty and is unlikely to commit an offence while on bail, as mandated under Section 37 NDPS Act.

The single judge also relied on the recent Supreme Court judgment in Narcotics Control Bureau v. Kashif 2024 LiveLaw (SC) 1033 wherein it was held that non-compliance or delay under Section 52A regarding disposal of narcotics is a procedural irregularity and cannot by itself be a ground for bail or acquittal.

On the specific plea regarding the FSL report, the Bench rejected the plea for enlarging the applicant on bail as it noted that the report of chemical analysis of the contraband was given by the laboratory on 02.12.2023 confirming the recovered substance to be contraband (ganja).

It added that once the IO had found sufficient evidence to prosecute an accused for offence for which FIR has been lodged, the FSL report, therefore, would only be corroborative in nature to the material collected and filed along with charge-sheet by Investigating Officer.

Hence, the Court said, report of FSL further received on a subsequent stage would be covered under Section 173(8) of CrPC.

Furthermore, the Court categorically noted that the FSL report would be covered by subsection 4(a) of Section 293 [Reports of certain Government scientific experts] and such report is only corroborative in nature to the material collected and filed along with charge-sheet by Investigating Officer.

The Court further noted that the investigation as far as owner of the vehicle is still going on.

Thus, rejecting the bail plea, the Court remarked thus::

“Having considered the argument raised from both sides, I find that the contraband (ganja) has been seized above the commercial quantity from the vehicle in which the applicant was sitting and claims to be cleaner and was in conscious possession of the said contraband. The reliance placed upon the various decisions are distinguishable from the facts of the present case”.