NDPS accused moves plea in Supreme Court to clarify law on statutory bail under statute

A plea has been filed in the Supreme Court raising an important question of law as to whether an accused is entitled to statutory bail under Section 167(2) of the Code of Criminal Procedure when no chemical analysis report is filed along with the final report, thereby making it an incomplete final report, within the 180-day period mandated under the Narcotic Drug and Psychotropic Substances Act. 

The present plea is filed by a man accused under the NDPS Act challenging a Kerala High Court judgment which had dismissed his bail application on two counts. The petitioner in the case, Sameer, has contended the Kerala High Court had erroneously dismissed his bail application without considering the settled position of law and the view taken by the Punjab and Haryana High Court, Karnataka High Court and the coordinate bench of the Kerala High Court itself. 

In the present case, Sameer was arrested by the Kerala Police in connection with the Crime No 91 of 2021 of Central Police Station, Ernakulam under Section 20(b)(ii)(C), 22(C) and 29 of the NDPS Act. As per the prosecution case, he was residing in an apartment on the 2nd floor of Njarakkattu Residency in Kunnappally Lane in Nettipadam Road, Ernakulam. On January 30, 2021, the police got information that selling of narcotic drugs is going on in the apartment. When police reached the apartment, the petitioner opened the door and the 2nd as well as 3rd accused were present in the apartment. The police searched the body of the petitioner as well as other accused and the apartment as well. As per the prosecution, the allegation is that 44.56 gms of MDMA, 1286.51 gms of Hashish oil and 340 gms of ganja were seized from the apartment. Final report in the case was filed on April 12, 2021.

The petitioner submitted, “Admittedly, final report has been filed before the court concerned without any chemical analysis report. It is pertinent to note that commercial quantity cannot be determined exactly without knowing the exact identity of the contraband involved, which can be ascertained only through a chemical analysis report.”

He further contended that Kerala High Court didn’t appreciate the order passed by the Punjab and Haryana High Court in case of Ajit Singh alias Jeeta and Anr. v. State of Punjab, Criminal Revision No. 4659 of 2015 (O&M) and connected cases wherein it had comprehensively answered the question “Whether the presentation of report under Section 173(2) Cr.P.C. by the police without the report of Chemical examiner/Forensic Science Laboratory amounts to incomplete challan and in the absence of any extension of time under Section 36-A(4) of the N.D.P.S. Act, the accused is entitled to bail under Section 167(2) Cr.P.C” referred to it by the Single Bench. 

“As per the High Court of Punjab & Haryana, chemical examination report is an essential, integral and inherent part of investigation under NDPS act and a final report filed without the report of the chemical examiner is incomplete and if the same is not filed within the period of 180 days, default bail can be granted to the accused. It was also stated that it would be grossly unsafe to reply upon opinion based on naked eye inspection. Hence, the requirement of chemical examination report is an absolute necessity and there are no exceptions provided, as per the High Court of Punjab & Haryana in the said decision,” the plea stated. 

It stated, “Thus, the impugned judgments in this case are contrary to the view taken by the Punjab & Haryana High Court, Karnataka High Court as well as Coordinate Bench of the Kerala High Court itself.”