Supreme Court To Decide If Chargesheet Without FSL Report In NDPS Cases Is 'Incomplete Report' U/s. 173 CrPC

The Court will also decide whether a chargesheet without the FSL/Examiner’s Report in a case under the Narcotic Drugs and Psychotropic Substances Act, 2012 (‘NDPS Act’) case can be termed as an “incomplete report” under Section 173 Section 167(2) of Code of Criminal Procedure (‘Cr.P.C’).

The Bench of Justice Surya Kant, Justice Sudhanshu Dhulia and Justice Ujjal Bhuyan observed, “One such issue pertains to the establishment of adequate FSL/Examiner Laboratories by the State Governments along with appointment of requisite technical staff to operate such laboratories. It seems to us that issues such as the current status of the FSL/Examiner’s Laboratories, creation of a robust mechanism for submission of the FSL/Examiner’s Reports within the stipulated period and the issue pertaining to follow up action taken by the States in compliance of the directions issued by this Court in Union of India vs. Mohan Lal & Anr., (2016) 3 SCC 379, etc. would require indepth consideration by us. Consequently, we propose to hear all the States and the Union Territories before any effective directions are issued…We, therefore, direct the Registry to issue notices to the Union of India, all the States and the Union Territories, returnable on 29.08.2024.”

Senior Advocates M.L. Saggar, Uday Gupta, Vikram Chaudhri, DAG Bhanwar Pal Singh Jadon and AOR Balaji Srinivasan appeared for the Petitioners whereas ASG Vikramjeet Banerjee, Senior Advocate Swarupama Chaturvedi, Senior AAG Lokesh Sinhal and AAG Neeraj appeared for the Respondents.

“During the course of hearing, it so transpired that various other questions of paramount public importance, with regard to the fairness and efficacy of the trials under the NDPS Act, also need to be resolved. Some of these issues have also been formulated by one of the learned counsel for the petitioners.”, the Court said.

The Special Leave Petition was filed against the judgment passed by the Delhi High Court which dismissed their criminal revisions on the grounds that 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 Cr.PC had not been filed within the stipulated period.

The petitioners had impugned a common order, whereby their respective applications for grant of bail in default under Section 167(2) of CrPC were rejected.

The petitioners were being prosecuted for committing an offence under Sections 21 and 29 of’) the NDPS Act. They had claimed it could not be asserted that the substance allegedly recovered from them was a narcotic drug or psychotropic substance without a Chemical Examiner’s report indicating the same. This being the foundation of the allegation against the petitioners, a police report not accompanied by a Chemical Examiner’s report could not be considered as a report under Section 173(2) of the Cr. PC.

The Delhi High Court raised the following questions: (i) Whether in the case of the commission of an offence punishable under the provisions of the NDPS Act, which is founded on recovery of narcotic drugs and/or psychotropic substance, a police report under Section 173(2) of the Cr.PC can be considered as such if it is not accompanied by a Chemical Examiner’s Report about the substance recovered, and; (ii) Whether an accused would be entitled to bail in default under Section 167(2) of the Cr.PC where his application for such bail has been filed prior to the submission of the report under Section 173(2) of the Cr.PC but is taken up for consideration simultaneously with the said report being filed.

The High Court had observed, “As noted above, this is also clearly discernable from the plain language of Section 167(2) of the Cr.PC. It is relevant to note that the said provision circumscribes the power of the court to remand an accused to custody if a chargesheet has not been filed within the prescribed time and the accused indicates that he is prepared to furnish bail. The accused indicates so only by making an application. The said application can be made in writing and filing it in the manner as prescribed or even orally before Court. (See: Rakesh Kumar Paul v. State of Assam: (2017) 15 SCC 67).”

Accordingly, the matter is now listed for a further date before the Apex Court.

Cause Title: Mohd. Arbaz and Ors. v. The State of NCT of Delhi

Appearances:

Petitioners: Senior Advocates M.L. Saggar, Uday Gupta, Vikram Chaudhri, DAG Bhanwar Pal Singh Jadon, AOR Balaji Srinivasan, Yadav Narender Singh, Somesh Chandra Jha, Vikram Hegde, Anas Tanwir, Megha Karnwal, Ajay Pal, Anil Kumar, Nishant Singh, Advocates Vikas Sharma, Vikram Hegde, Tripurari Ray, R.A. Worso Zimik and others.

Respondent: ASG Vikramjeet Banerjee, Senior Advocate Swarupama Chaturvedi, Senior AAG Lokesh Sinhal, AAG Neeraj and others.

Click here to read/download the Order