NDPS Act| Chemical Examination Report Is Integral Part Of Investigation And Is Required For Establishing Charges: Calcutta HC
The Calcutta High Court, Jalpaiguri Bench, held that a Chemical Examination Report (CER) is the most crucial evidence that should be included in the charge sheet as it is required to establish charges under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The Court granted bail to an individual charged under the NDPS Act who was denied bail by the Special Court. The Court emphasised that submitting a charge sheet without the CER and notifying the Court that a supplementary charge sheet will be filed in the future with the Examination Report is not in line with the proviso to Section 36A(4) of the NDPS Act.
The Bench comprising Justice Moushumi Bhattacharya and Justice Prasenjit Biswas observed, “The petitioner, before us, on the other hand, has been charged for commission of an offence under the NDPS Act which requires the Trial Court to take cognizance of the offence committed under the Act. This means that the CFSL / Laboratory Report becomes an essential and integral part of the investigation for establishing the charges under the NDPS Act. The Chemical Examination Report therefore becomes the most vital piece of evidence which is required to be made part of the charge-sheet”.
Advocate Ashima Mandla appeared for the Petitioner, and Additional Public Prosecutor Aditi Sankar Chakraborty appeared for the Respondent.
The Petitioner filed a Bail Application under Section 439 of the Code of Criminal Procedure, 1973 (CrCP) in connection to a case filed under Sections 21(c), 22(c), 25 of the NDPS Act. The Petitioner had filed several applications for bail before the Special Court under the NDPS Act, all of which were rejected. The Petitioner contended that the Investigating Officer (IO) submitted the charge sheet without attaching the CER. He alleged that the Trial Court mechanically took cognizance of the charge-sheet submission.
The Court referred to the case of Subhas Yadav vs The State of West Bengal [2023 OnLine Cal 313] and noted that Section 36A of the NDPS Act deals with offences tried in Special Courts. Section 36A(4) is similar to Section 167(2) of the CrPC and requires that investigations be completed within 180 days.
The Court asserted that the only difference is that for offences under the NDPS Act or involving commercial quantities, the 90-day limit under Section 167(2) is extended to 180 days under Section 36A(4). If the investigations are not completed within this time frame then the Special Court can grant an extension of up to one year upon the request of the Public Prosecutor, based on the progress of the investigation and specific reasons for detaining the accused beyond 180 days. The Special Court must consider both the progress report and reasons for detention when deciding on the extension, the Court observed.
The Court emphasised that the bail order should reflect the basis for granting or rejecting the extension.
The Court noted that the CER is the most critical evidence that must be included in the charge sheet. The Court emphasised that there is a significant difference between the use of “further evidence” in Section 173(8) of the CrPC and the Laboratory Report in an NDPS case. The latter serves as the basis for the charge sheet and must be considered by the Trial Court when determining the offence. The Court placed reliance on the case of Sagar Parshuram Joshi vs. The State of Maharashtra [2021 SCC OnLine Bom 3051].
The Court held that submitting a charge sheet without the CER within 180 days and notifying that a supplementary charge sheet will be filed in the future with the Examination Report is not in line with the proviso to Section 36A(4) of the NDPS Act. The Court asserted that such practice is futile and raises the presumption that the IO filed a cypher simply to meet the 180-day deadline. The evidence presented in court also falls significantly short of the statutory mandate of the proviso to Section 36A(4), the Court noted.
“The fact that the charge-sheet was submitted within 180 days without the Chemical Examination Report with simply a line that a supplementary charge-sheet will be filed in future with the Examination Report is beyond the contemplation of the proviso to section 36A(4) of the NDPS Act. Filing of a charge-sheet without the Examination Report in relation to an offence under the NDPS Act is an exercise in futility and raises the presumption of the I.O filing a cipher only for the sake of closing the first window of the 180 days under the proviso to 36A(4) of the Act. Moreover, the material placed before us falls significantly short of the statutory mandate of the proviso to section 36A(4)”, the Bench observed.
The Court noted that the Prosecution did not fulfil the legal requirements of the proviso to Section 36A(4) and the procedural rule of including the CER in the charge sheet. The Court pointed out that not complying with these requirements is sufficient to challenge the statutory limitation under Section 37 of the NDPS Act, 1985.
Accordingly, the Court allowed the Application and granted bail to the Applicant.
Cause Title: Rakesh Sha v The State of West Bengal
