03 Nov 2020

A police report under Section 173(2) of the CrPC, 1973 sans Chemical Examiner’s Report can be considered in context of offence punishable under the provisions of the NDPS Act, 2012 - Delhi High Court

Case : Mohd. Arbaz v. State of NCT of Delhi CRL. REV. P. 1219/2019 and CRL. M. A. 10252/2020

Court : Delhi High Court

Bench : Justice Vibhu Bakhru

Decided on : 03 Nov 2020

Relevant Statutes

Sections 167(2) and 173(2) of the Code of Criminal Procedure Act, 1973

Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 2012

Brief Facts and Procedural History

1. The petitioners were apprehended by the raiding team of the PS Special Cell with 20 kg heroin in Delhi. They were arrested. On 17.12.2018, the FIR under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 2012 was registered with PS Special Cell.

2. On 27.05.2019, a police report under Section 173(2) of the Code of Criminal Procedure Act, 1973 was filed with the Special Court. The said report was not accompanied by the Chemical Examiner’s report confirming that the substance recovered from the petitioners and their vehicle was heroin.

3. On 29.07.2019, the petitioners filed an application seeking bail in default under the provisions of Section 167(2) of the Code of Criminal Procedure Act, 1973 on the assertion that the investigating agency has failed to file a police report under Section 173(2) of the Code of Criminal Procedure Act, 1973 within the stipulated period of one-hundred and eighty days under Section 36A(4) of Narcotic Drugs and Psychotropic Substances (NDPS) Act, 2012 read with Section 167 of the Code of Criminal Procedure Act, 1973.

4. The petitioners’ claim that they are entitled to bail in default is premised on the assertion that the investigating agency has failed to file a police report under Section 173(2) of the Code of Criminal Procedure Act, 1973 within the stipulated period of one-hundred and eighty days. Although, it is not disputed that a report was filed within the stipulated period, the petitioners contend that the said report was incomplete as it was not accompanied by the report of the Chemical Examiner.

5. The respective applications for grant of bail in default under Section 167(2) of Code of Criminal Procedure Act, 1973 were rejected by the special court as the said report had been filed simultaneously to the petitioners being produced in Court; their applications were liable to be dismissed.

6. The petitioners challenged the said order in the present petition.

The Issues of the Case

Whether in a case of commission of an offence punishable under the provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 2012, which is founded on recovery of narcotic drugs and/or psychotropic substance, a police report under Section 173(2) of the Code of Criminal Procedure Act, 1973 can be considered as such if it is not accompanied by a Chemical Examiner’s Report with regard to the substance recovered?

Whether an accused would be entitled to bail in default under Section 167(2) of the Code of Criminal Procedure Act, 1973 where his application for such bail has been filed prior to the submission of the report under Section 173(2) of the Code of Criminal Procedure Act, 1973 but is taken up for consideration simultaneously with the said report being filed?

The Observations of the Court

1. There are divergent opinions regarding whether a report under Section 173(2) of the Code of Criminal Procedure Act, 1973 could be considered as a complete report in absence of the Chemical Examiner’s Report in cases where the prosecution’s case is founded on recovery of anything smuggled or illegal.

2. In cases of offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 2012, where the prosecution’s case rests on recovery of an illicit substance, the Chemical Examiner’s Report evidencing the nature of the substance allegedly recovered would undoubtedly be at the core of the prosecution’s case.

3. The Full Bench of the Punjab and Haryana High Court in State of Haryana v. Mehal Singh and Ors., AIR 1978 P&H 341 observed that the contention that a charge sheet would be incomplete if not accompanied by the report of experts such as chemical analyst, serologist, ballistic expert, fingerprint expert etc. stands on weaker ground.

4. In Ajit Singh @ Jeeta and Anr. v. State of Punjab: Crl. Rev. No. 4659/2015, decided on 30.11.2018, the Division Bench of the Punjab and Haryana High Court observed that the courts in State of Haryana v. Mehal Singh and Ors., AIR 1978 P&H 341 had interpreted the scope of the Code of Criminal Procedure Act, 1973 in the backdrop of general offences confined to the Indian Penal Code, 1860 and some other statutes; but the Courts were not ceased of a matter relating to a special Act such as the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 2012, which although raises a similar question but requires to be addressed keeping in view the specific provisions of a special Act.

5. The Division Bench of the Bombay High Court took a similar view in Sunil Vasantrao Phulbande and Anr. v. State of Maharashtra: (2002) 3 MahLJ 689. The Court reasoned that in a case involving the seizure of contraband, the prosecution’s case would rest on the substance seized being either a narcotic drug or a psychotropic substance. And, a police report under Section 173 of the Code of Criminal Procedure Act, 1973 which is not accompanied by a Chemical Examiner’s report could not be contemplated as a charge-sheet/report under Section 173(2) of the Code of Criminal Procedure Act, 1973, as the Magistrate would not be in a position to take cognizance of the offence.

6. Unless there is evidence to establish the identity and nature of the said substance, it would not be feasible for any court to take cognizance of an offence. Till recently, it was also necessary to ascertain the purity of the illicit substance to determine the punishment imposable for the same, that is, whether it was a commercial quantity or a small quantity.

7. The very nature and identity of an alleged illegal substance recovered forms the foundation of certain cases relating to offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 2012. In such cases, the Chemical Examiner’s report is of primary importance. Usually, in such cases the police report would be insufficient to take cognizance of the offence if the same is not accompanied with an expert’s report on the analysis of the substance to establish the substance recovered, and, therefore could not be considered as a complete report.

8. However, in Kishan Lal v State: 1989 (39) DLT 392, the Division Bench of Delhi High Court took a different view in the context of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 2012. The Division Bench held that the provisions of Section 173 of the Code of Criminal Procedure Act, 1973 must be considered as separate and distinct from Section 190(1)(b) of the Code of Criminal Procedure Act, 1973. The Court held that the report under Section 173(2) of the Code of Criminal Procedure Act, 1973 would not be incomplete if it is not accompanied by a Chemical Examiner’s report as it would be open for the Magistrate not to take cognizance of the offence if the same could not be taken based on the said report.

9. In Babu v. State: Bail Appln. No. 2075 of 2020, decided on 25.09.2020, a Coordinate Bench of Delhi High Court had referred to the aforesaid decision and observed that it was bound by the Division Bench decision of the Delhi High Court; judicial discipline mandates this Court to follow the same. Consequently, in view of the decision of the Division Bench of this Court in Kishan Lal v State: 1989 (39) DLT 392, held that the petitioner is not entitled to grant of bail under Section 167(2) Code of Criminal Procedure Act, 1973 for non-filing of the FSL report along with the charge sheet.” The High Court concurred with the view expressed by the Coordinate Bench in Babu v. State: Bail Appln. No. 2075 of 2020, decided on 25.09.2020 that the view of the Division Bench in Kishan Lal v State: 1989 (39) DLT 392 is binding.

10. In view of the above, the question of whether the petitioners were entitled to bail in default does not arise. However, for the sake of completeness, this Court considers it apposite to also decide the question of whether the applications filed by the petitioners amounted to them availing their right to bail prior to the Chemical Examiner’s Report being filed.

11. The Special Court had proceeded on that basis that even though the petitioners may have filed that application at an earlier point of time than the learned Public Prosecutor placing the Chemical Examiner’s report on record, the same could only be considered as having been filed when the accused were produced in Court. And, according to the Special Court was simultaneous with the Public Prosecutor filing the Chemical Examiner’s report, which terminated their right to seek a bail in default, if any.

12. In the case of Sanjay Dutt v. State: (1994) 5 SCC 410, the Constitution Bench of the Supreme Court further clarified that the right accruing to the accused of seeking bail in default under Section 167(2) of the Code of Criminal Procedure Act, 1973 would only be enforceable prior to the filing of the charge-sheet. The same would not survive or remained enforceable once the charge-sheet is filed.

13. Simultaneously the decision of Supreme Court in Mohamed Iqbal Madar Sheikh v. State of Maharashtra: (1996) 1 SCC 722 should also be kept in mind that,

“If an accused charged with any kind of offence, becomes entitled to be released on bail under proviso (a) to Section 167(2), that statutory right should not be defeated by keeping the applications pending till the charge sheets are submitted, so that the right which had accrued is extinguished and defeated”

14. In Alamkhan Umarkhan Jatmalek Jenjari Tal, Dashada Dist., Surendranagar and Anr. v. State of Gujarat: (2015) 3 GLH 737 and Deepak Mandal @ Deepu Mandal @ Chhootu v. The State of Jharkhand: Crl. Rev. No. 1184 of 2014 decided on 05.01.2015 it was held that The Court held that the accused had filed a bail application and was ready to furnish the bail bonds. In the circumstances, an indefeasible right for being released on bail had accrued because till filing of the application, the charge-sheet had not been filed; the charge-sheet was filed on the same date, albeit, at a later point of time.  Bikramjit Singh v. State of Punjab: Crl. A. No. 667 of 2020 decided on 12.10.2020 concurs with these decisions.

15. The Supreme Court in Union of India v. Nirala Yadav: (2014) 9 SCC 457, explained that “the accused can avail his liberty only by filing an application stating that the statutory period for filing of the challan has expired if the same has not yet been filed, and an indefeasible right has accrued in his favour and further he is prepared to furnish the bail bond. Once such an application is filed, it is obligatory on the part of the court to verify from the records as well as the public prosecutor whether the time has expired and the charge-sheet is filed or not”. The question of whether an accused has exercised his indefeasible right for seeking bail in default is not contingent upon the time when the said application is heard and decided. So long as the said application has been preferred in the manner as is required, the accused has done whatever is expected of him for indicating that he is exercising his right. Once having done so, the court is only required to examine whether at that point the petitioner is entitled to bail in default. Any subsequent acts done on behalf of the prosecution would not be relevant for the purposes of determining whether the accused had validly exercised his rights.

16. The moment the accused makes such an application, the court is required to only examine whether the conditions as prescribed under Section 167(2) of the Code of Criminal Procedure Act, 1973 have been met when the application is made. If the answer is in affirmative, then the power of the court to remand is lost and the accused has to be granted bail.

17. The Special Court has proceeded on an erroneous premise that the applications filed by the accused could be considered as having been moved only at the time when they were produced before the court and not prior to it. The implicit assumption that the relevant point of time for considering whether the accused have availed of their indefeasible right would be the point at which the applications are considered and not when it is filed is not sustainable.

18. Although the decision of the Special Court is found to be erroneous, no relief can be granted to the petitioners because the contention that an indefeasible right for a default bail had accrued to the petitioners is based on an erroneous assumption that a final report under Section 173(2) of the Code of Criminal Procedure Act, 1973 had not been filed within the stipulated period.

The Decision by the Court

1. The impugned order of the Special Court is set aside.

2. The applications moved by the petitioners before the Special Court seeking bail in default under the provisions of Section 167(2) of the Code of Criminal Procedure Act, 1973 are dismissed.

Click here to view/download the judgement >