Mere Non-Filing Of FSL Report At Time Of Filing Chargesheet Doesn't Entitle NDPS Accused To Default Bail: Delhi High Court Reiterates

For context, a co-joint reading of Section 167(2) CrPC, as well as of Section 36A(4) of the Narcotics Drugs & Psychotropic Substances Act 1985 provides that if on the expiry of the prescribed period of 180 days, the investigation in a particular NDPS Act case is still incomplete, an indefeasible right of bail accrues in favour of the accused.

A division bench of Justices Subramonium Prasad and Harish Vaidyanathan Shankar observed,

“A chargesheet is complete so long as it meets all the requirements enumerated under sub-section (2) of Section 173 of the Cr.P.C. and is accompanied by all the documents and statements of witnesses as mandated under sub-section (5) of Section 175…a chargesheet would not be invalidated simply because of the reason that all documents relied upon by the prosecution have not been filed with the chargesheet. What needs to be seen is whether the Court, on the basis of the chargesheet and the materials produced before it is satisfied about the commission of an offence.”

In the case at hand, 1.4 kg heroin was allegedly seized from the Petitioner. A chargesheet was filed under Sections 21, 25 and 29 of the NDPS Act within 180 days. The said chargesheet however did not contain the Central Forensic Science Laboratory Report.

The Petitioner filed a default bail application which came to be dismissed after filing of supplementary chargesheet by the investigating agency, containing the CFSL Report.

Petitioner contended that the prosecution failed to file the CFSL Report along with the chargesheet, rendering it incomplete. It was argued that in the absence of the CFSL Report the Trial Court could not have ascertained as to whether the seized substances were in fact contraband and hence, the Trial Court could not have taken cognizance of the offence.

Trial Court held that the mere absence of CFSL Report at the time of filing of chargesheet does not render the chargesheet otiose and incomplete and at the time of filing of the main chargesheet there was sufficient material for it to take cognizance.

The High Court at the outset perused Section 173(2) CrPC which lays down the general format and contents of the Police Report. It sets out the details which need to be included in this report such as the nature of offence, details of the parties involved and the factual matrix of the case.

Section 173(5), the Court noted, requires the documents relied upon by the prosecution as well as the witness statements under Section 161 CrPC be submitted along with the chargesheet. This is followed by Section 173(8) whereby the investigating agency is bestowed with the power to conduct further investigation and to ensure that any developments or investigative discoveries during the investigation of the case are brought to the attention of the Court.

“These provisions, upon a conjoint reading, reflect the legislative intent to ensure that the Magistrate is furnished with a complete report on the basis of which it can take cognizance…if the chargesheet is filed within the time period prescribed under sub-section (2) of Section 167 of the Cr.P.C. and is in compliance with the requirements of sub-section (2) of Section 173, the statutory period stands tolled, and the right to default bail ceases to exist and the right to statutory bail becomes unenforceable.”

Section 167(2) creates a legal fiction and the right to default bail is automatically triggered if the chargesheet is not submitted within the prescribed time. Court said,

“Even though the right to default bail under subsection (2) of Section 167, flows from Article 21 of the Indian Constitution the benefit of the proviso upended to sub-section (2) of Section 167 would accrue to the accused only when a chargesheet has not been filed and the investigation is kept pending against him.”

It relied on Kishan Lal v. State (1989) where a Division Bench held that investigation except for the report of an expert like the serologist or scientific officer and chemical examiner is complete and, therefore, the Magistrate is empowered to take cognizance of an offence based on the police report which does not include the expert's opinion.

In the case at hand, the High Court said the chargesheet demonstrates that substantial recoveries of narcotic substances were made at the instance of the Petitioner.

Resultantly, the petition was dismissed.

Appearance: Mr. Pratyush Prasanna, Ms. Malvika Kulkarni, Ms. Saumya Yadav, Advocates for Petitioner; Mr. Amit Ahlawat, APP for the State Mr. Sridhar Potaraju, Senior Advocate (Amicus Curiae) with Mr. Lalit Mohan, Ms. Niharika Singh, Advocates for Respondent

Case title: Rahimullah Rahimi v. State NCT of Delhi

Case no.: CRL.REV.P. 163/2024

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