The Calcutta High Court granted bail to a person in an NDPS case as it found that FSL report was not filed with the charge-sheet, even as it was filed within the stipulated period of 180 days.

The Court was hearing an application for bail under Section 439 (Special powers of High Court or Court of Session regarding bail) of the Code of Criminal Procedure, 1973 (CrPC). The question before the Court was what happens if a charge-sheet is not accompanied by the Forensic Science Report.

The Bench recognised that contrary views have been expressed on this question by various High Courts, but concluded that “judicial discipline” warrants it to follow the view taken by a coordinate Bench of their own Court.

The Division Bench of Justice Arjit Banerjee and Justice Apurba Sinha Ray said, “In view of the undisputed fact that in the present case the charge sheet, although filed within the period of 180 days, was not accompanied by the FSL report, and that the FSL report was filed as part of a supplementary charge-sheet filed beyond 180 days from the date of arrest of the petitioner and after he applied for statutory bail, we have to hold that upon expiry of 180 days, the petitioner became entitled to statutory bail/default bail, and the learned Trial Court erred in not extending that privilege to the petitioner.”

Advocate Md. Wasim Akram appeared for the petitioner, Advocates Antarikhya Basu and Sandip Kundu appeared for the State.

The Bench also recognised that the Supreme Court is seized of a Special Leave Petition on the question of whether a charge-sheet filed in a NDPS case without a forensic report can be termed as an ‘incomplete report’ under Section 173 (Report made by the police officer on completion of investigation) of the CrPC.

In the present case, the accused argued that though the charge sheet was filed within the stipulated period of 180 days, it was invalid charge since it did not contain the FSL report. He applied for bail on the 183rd day, claiming to be entitled to statutory bail.

On the prescription for custody under the NDPS Act, the High Court noted that Section 36A(4) of the NDPS Act prescribes that reference to ‘90 days’ in Section 167(2) CrPC shall be construed as reference to ‘180 days’ for the purpose of NDPS cases. Therefore, in an NDPS case, if the charge-sheet is filed within 180 days from the date of arrest of the accused, no right of statutory bail accrues in favour of the accused.

With regard to the filing of a charge-sheet without an accompanying forensic report, the High Court of Jammu And Kashmir (J&K) held that a charge-sheet filed if the charge sheet contains details required under Section 173 Cr. P.C. and is filed within the period prescribed, it cannot be termed as incomplete, in the absence of FSL report.

The J&K High Court relied on a Karnataka High Court judgment which held that a petitioner does not get a right to default bail merely because the charge-sheet or final Report filed by the police was without the FSL report.

The Bombay High Court has held that in a NDPS case a police report containing the details prescribed under Section 173(2) CrPC. is a complete police report or a charge sheet or a challan even if it is unaccompanied by a forensic report.

However, since a coordinate Bench of the Calcutta High Court had previously taken a contrary view on the issue, the Court granted the accused bail.

Cause Title: Idul Mia [CRM (NDPS) 1359 of 2024]

Appearance:

Petitioner: Advocate Md. Wasim Akram

Respondent: Advocates Antarikhya Basu and Sandip Kundu

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NDPS Act

Tushar Kohli