The Punjab and Haryana High Court has granted bail to a man arrested under the Narcotic Drugs and Psychotropic Substances (NDPS) Act 1985, observing that forensic report forms the foundation of a case under the NDPS Act and in case the same is not there, the entire case of prosecution falls to the ground.
A Single-Judge Bench of Justice Gurvinder Singh Gill passed this order on October 14, while hearing a petition filed by Vinay Kumar alias Vicky. The petitioner assailed order dated July 5, 2021 passed by Additional Sessions Judge, Sirsa vide which an application filed by the petitioner under provisions of Section 167(2) Cr.P.C. for grant of bail has been declined.
As per the case of prosecution, on December 20, 2020, when a police party headed by ASI Ashok Kumar was patrolling in the area of village Jandwala Bishnoian, a tractor was seen coming on the road and the driver of the said tractor upon noticing the police party abruptly tried to turn his tractor towards the fields but in the said process, his tractor stopped. The said person was apprehended and upon enquiry, he disclosed his name as Vinay Kumar @ Vicky. Upon checking a plastic bucket tied with the mudguard of the tractor, 7000 tablets of ‘Clovidol-10 SR’ (Tramadol Hydrochloride) were recovered.
The matter was investigated by the police and a report under Section 173 Cr.P.C. was presented before the trial Court on March 4, 2021. The said report was, however, not accompanied by the report of FSL.
The period of 180 days, which is mandated for filing of challan as per provisions of NDPS Act read with Section 167 Cr.P.C. expired on June 20, 2021. Since the prosecution did not file the FSL report even by the said date, the petitioner moved an application under Section 167(2) Cr.P.C. for his release on bail on June 22, 2021 on the ground that in the absence of a report of FSL, the challan could not be said to be complete.
The said application was dismissed by the trial court on July 5, 2021.
The Counsel for the petitioner submitted that the trial court fell in error in relying upon a Full Bench judgment rendered by the Court in AIR 1978 Punjab 341 – State of Haryana vs Mehal Singh and others whereas the said judgment did not pertain to an offence under the NDPS Act and has in fact been distinguished by a subsequent judgment dated November 30, 2018 of a Division Bench in Ajit Singh alias Jeeta vs State of Punjab.
The Counsel further submitted that since there has been some conflict in judgments of the Court as regards the issue in hand, the matter has been referred to a larger Bench order dated September 16, 2020 passed in 2020 (4) Law Herald 3188 Julfkar Vs. State of Haryana to consider as to whether a challan filed without report of FSL would be an incomplete challan.
It has been submitted that several co-ordinate Benches have granted bail in view of the fact that the matter in hand has been referred to a Division Bench and is still pending.
Opposing the petition, the State Counsel submitted that since the mandate of CrPC is filing of challan within the stipulated period and since the challan had been filed within 180 days in the instant instance, no case for grant of bail is made out.
The court said that it is no doubt correct that the Supreme Court and also a full Bench of this Court have held that a challan, even if not accompanied by a report of the Chemical Examiner or of the expert, cannot be said to be incomplete.
“However, it needs to be highlighted that the said cases did not pertain to an offence under the NDPS Act. A case under the NDPS Act can only survive in case the prosecution is able to establish that the article recovered is indeed a contraband and which can only be established on the basis of its chemical examination, which is normally done through FSL established by the Government. In other words, the report of FSL forms the foundation of the case of prosecution and in case the same is not there, the entire case of prosecution falls to ground,” observed the Bench.
It said that in other cases involving injury or murder under IPC, even the ocular version coupled with some medical evidence or some other circumstantial evidence may suffice to bring home the guilt of the accused.
Though a report of an expert, if sought, pertaining to blood stains or comparison of handwriting, ballistic report could be helpful to establish the case of the prosecution for such offences under IPC or some other Acts, but cannot be said to be indispensable in each and every case and even in the absence of such reports, the prosecution may well be able to establish its case.
The petitioner contended that the report of FSL forms the foundation of the case of prosecution and is an integral part of the challan and cannot be brushed aside.
Since there are some conflicting judgments of the Court and the matter stands referred to a Division Bench and is still sub-judice, the Court deemed it appropriate to extend the concession of bail in terms of Section 167(2) CrPC to the petitioner, while also keeping in view the fact that the petitioner has been behind bars since the last more than nine months and is not stated to be involved in any other case.
“The impugned order is accordingly set aside and the petitioner is ordered to be released on bail on his furnishing bail bonds/surety bonds to the satisfaction of trial court/Chief Judicial Magistrate/Duty Magistrate concerned. It is, however, clarified that the prosecution would be at liberty to move for cancellation of bail/recall of this order in case the reference made to the larger Bench in Julfkar’s case (Supra) is answered in favour of prosecution”, the Bench ordered.