[NDPS Act] Default Bail Can't Be Granted Upon Timely Filing Of Chargesheet, Even If Not Accompanied With Chemical Report: Calcutta High Court

The Calcutta High Court bench of Justices Debangsu Basak and Md. Shabbar Rashidi has held that the right to default bail is defeated once a chargesheet is filed within the statutory time period. Even if the chargesheet is not accompanied by a Chemical Examination Report, it cannot be deemed incomplete provided the evidence collected during the investigation is sufficient to proceed against the accused. A charge sheet without the Chemical Examination Report filed within time is nonetheless a charge sheet which disentitles the accused to default bail.

Contentions:

The Petitioner submitted that a police report without the Chemical Examination Report of the contraband seized, is an incomplete report and the detenu is entitled to statutory bail.

It was further submitted that when the purpose of an investigation is to collect evidence, non-collection of the Chemical Examination Report signifies an inherent lacuna in the investigation.

It was further argued that while a police report may be complete despite missing documents, the police must base their opinion on sufficient material. Without the Chemical Examination Report, they cannot conclusively determine that the seized substance is a narcotic or drug.

The petitioner further stated that filing of a document in the midst of an investigation without collecting evidence thereof just to frustrate the right of a citizen cannot be said to be total compliance of the provisions under Section 170 read with Section 170(2) of the Criminal Procedure Code, 1973 (Code).

Per contra, the Public Prosecutor submitted that chargesheet filed sans the Chemical Examination Report will not entitle the accused to default bail.

It was further submitted that additional evidence gathered during investigation may be submitted even after the chargesheet. The use of “shall” in Section 173(5) of Code regarding forwarding “all documents” to the Magistrate is directory, not mandatory.

Lastly, it was submitted that a chargesheet can be filed piecemeal without completing the investigation and that, filing of such chargesheet will extinguish the right of an accused for grant of the default bail.

Issue for Consideration

Does a chargesheet without the Chemical Examination Report entitle the accused to default bail under the NDPS Act?

Observations:

The Court at the outset noted that the Coordinate Bench in State vs. Ebrahim Hossain and Another), 2022 has held that, chargesheet submitted without the Chemical Examination Report, could be construed as a report under section 173 (2) of the Code, and therefore the accused was not entitled to default bail.

The Calcutta High Court in Debashish Tarafder vs. State of West Bengal held that the infraction if there be any, of section 52A (4) of the Act of the NDPS Act has to be evaluated at the time of trial and not otherwise. It has also noted that, the procedure prescribed under section 52A of the Act of 1985 is a post seizure exercise and that failure to comply with such procedure does not affect the legality of the seizure.

Similarly, the Calcutta High Court in Raju Mandal vs. State of West Bengal negated the contention of the accused that it was entitled to default bail in view of the Chemical Examination Report not being filed along with the chargesheet.

After referring to issues framed in Subhas Yadav vs. State of West Bengal and conclusion arrived at by the court, the court held that Subhas Yadav (supra) cannot be applied to decide any of the issues that have fallen for consideration before us.

It further observed that in Rakesh Sha, a coordinate bench granted bail on the ground that the chargesheet lacked the Chemical Examination Report, thereby violating the proviso to Section 36A(4) of the NDPS Act. The Court viewed this as a procedural infirmity and relied on Subhas Yadav and the Bombay High Court's decision in Sagar Parshuram Joshi, 2021.

While perusing the above case, the court held that notably, the coordinate bench in Rakesh Sha did not consider binding precedents like Ebrahim Hossain, Debashish Tarafder, and Raju Mandal. Moreover, Subhas Yadav did not address the issue in question, and the Bombay High Court decision relied upon in Rakesh Sha had already been overruled in Manas Krishna T.K. (2021), well before Rakesh Sha was decided on August 25, 2023.

The Supreme Court in H.N. Rishbud & Anr. held that it is not possible to say that cognizance on an invalid police report is prohibited and therefore, is a nullity. An illegality committed in the course of the investigation does not affect the competence and the jurisdiction of the Court of trial.

The court noted that the Supreme Court in Sharif Ahmed and Another held that a chargesheet is considered complete when it contains material and evidence sufficient for taking cognizance and proceeding to trial. It must prima facie establish the offence, assuming the evidence is later proven. The chargesheet is complete if the case is not solely reliant on further evidence and the trial can proceed based on the existing record.

The Supreme Court in Narendra Kumar Amin held that non-filing of full set of documents with the chargesheet within the statutory period does not entitle the accused to default bail so long as the chargesheet is in compliance with Section 173(2) of the Code. It has held that, Section 173 (5) of the Code is directory.

Based on the above discussion, the court held that “as on date therefore, if a charge sheet which delineates the evidence required for the accused to stand trial is filed within time, then the accused is not entitled to default bail. A charge sheet without the Chemical Examination Report filed within time is nonetheless a charge sheet which disentitles the accused to default bail, as the Law stands today.”

Accordingly, all applications were disposed of and interim bail granted to the petitioners were cancelled.

Case Title: Ananta Barman and Ors. Vs. The State of West Bengal

Case Number: C.R.M (NDPS) 1617 of 2024

Judgment Date: 02/05/2025

For the Petitioner in CRM (NDPS) 1617 of 2024 : Ms. Sompurna Chatterjee, Adv. Mr. Apan Saha, Adv. Mr. Ishan Sen, Adv.

For the Petitioner in CRM (NDPS) 1811 of 2024: Mr. Apolok Basu, Adv. Mr. Avinaba Patra, Adv. Mr. Nazir Ahmed, Adv. Mr. Agnik Maulik, Adv.

For the Petitioner in CRM (NDPS) 1850 of 2024 : Mr. Ayan Bhattacherjee, Sr. Adv. Mr. Arup Kr. Bhoumick, Adv. Mr. Sharequl Haque, Adv. Mr. Shounak Mondal, Adv.

For the Petitioner in CRM (NDPS) 1893 of 2024: Mr. Soumyajit Das Mahapatra, Adv. Mr. Jisan Iqubal Hossain, Adv. Ms. Madhurai Sinha, Adv. Mr. Ranabeer Halder, Adv.

For the State in CRM (NDPS) 1617 of 2024 :Mr. Rudradipta Nandy, Ld. APP Ms. Amita Gaur, Adv. Mr. Sayeed Khan, Adv. Ms. Rituparna De Ghose, Adv.

For the State in CRM (NDPS) 1811 of 2024 :Mr. A. Basu, Adv. Mr. Raju Mondal, Adv. Ms. Rituparna De Ghose, Adv.

For the State in CRM (NDPS) 1850 of 2024 : Mr. Rudradipta Nandy, Ld. APP Mr. Anand Keshari, Adv. Ms. Afrin Begum, Adv. Ms. Rituparna De Ghose, Adv.

For the State in CRM (NDPS) 1893 of 2024 :Mr. Rudradipta Nandy, Ld. APP Mr. Bibaswan Bhattacharya, Adv. Mr. Subhajit Chowdhury Adv.

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