Punjab-Haryana High Court
Randeep Singh @ Kali vs State Of Haryana on 29 October, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
250
CRR-1966-2022
Date of Decision : 29.10.2022
Randeep Singh @ Kali .....Petitioner
Versus
State of Haryana .....Respondent
CORAM: HON'BLE MR. JUSTICE ASHOK KUMAR VERMA
Present : Mr. Sanjiv Kumar Aggarwal, Advocate
for the petitioner.
Mr. Gaurav Bansal, A.A.G., Haryana
for the respondent-State.
****
ASHOK KUMAR VERMA, J. (ORAL)
The petitioner has filed the present revision petition for setting aside the impugned order dated 07.09.2022 passed by learned Additional Sessions Judge, Sirsa whereby the application dated 06.09.2022 filed by the petitioner under Section 36-A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') read with Section 167(2) of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') for grant of default bail in case FIR No.113 dated 07.03.2022 registered under Section 15 of the NDPS Act (Sections 29 and 27(a) were added later on) at Police Station City Mandi Dabwali, District Sirsa was dismissed.
Learned counsel for the petitioner contends that the challan had been filed in the instant case on 01.09.2022 without the FSL report, and therefore, he would be entitled to default bail in terms of Section 167(2) of the Cr.P.C. He has placed reliance on the judgments of the 1 of 5 ::: Downloaded on - 02-11-2022 01:32:45 ::: CRR-1966-2022 -2- Division bench of this Court in the case of Ajit Singh @ Jeeta and another Vs. State of Punjab, CRR No.4659 of 2015 decided on 30.11.2018; State of Haryana Vs. Dildar Ram @ Dari, CRM-M- 25600-2021, decided on 15.07.2021; Bhim Sain Vs. State of Haryana : 2022(1) RCR (Criminal) 93; Bhupinder Kumar @ Binder Vs. State of Haryana : 2019 (2) RCR (Criminal) 376 and Saleem @ Mulla Vs. State of Haryana : 2021(3) RCR (Criminal) 407.
Learned State counsel, upon instructions, states that FSL report could not be filed within the stipulated period of 180 days. He, however, contends that challan filed without even FSL report would be a complete challan. Learned State counsel opposes the present petition in terms of status report filed by way of an affidavit dated 11.10.2022 filed in the Registry which is taken on record.
I have heard learned counsel for the parties.
The FIR was registered against the petitioner and other co- accused on 07.03.2022 on the allegations that 1220 kgs poppy husk was recovered from the house of co-accused Richpal Singh. The challan is stated to have been filed on 01.09.2022. The FSL had not been filed along with the challan. The petitioner had sought bail from the Sessions court in terms of Section 167(2) Cr.P.C. but his application was dismissed on 07.09.2022. This court in the case of State of Haryana Vs. Dildar Ram @ Dari's case (supra); Bhim Sain' case (Supra); Bhupinder Kumar @ Binder's case (Supra) and Saleem @ Mulla's case (Supra) had held that filing of the challan without FSL report would not be regarded as a complete challan and, therefore, the accused would be entitled to default bail in terms of Section 167(2) Cr.P.C.
2 of 5 ::: Downloaded on - 02-11-2022 01:32:45 ::: CRR-1966-2022 -3- The specific question with regard to the significance of filing a challan under Section 173(2) Cr.P.C. without the FSL report in a case under the NDPS Act had been referred to a Division Bench of this court. The Division Bench of this court in the case of Ajit Singh @ Jeeta and another's case (Supra) held that the report of the FSL with regard to the nature of the recovered substance would go to the root of the matter and, therefore, a challan filed without the FSL report with regard to the nature of the substance would be an incomplete challan and would not satisfy the requirement envisaged under Section 167(2) Cr.P.C. The accused, in such circumstances, would be entitled to be released on default bail. The relevant extract of the judgment is reproduced hereunder:-
"We emphasize on the stringent aspect of the N.D.P.S. Act which would compellingly persuade us to take the aforesaid view. Without determining the nature and content of the contraband, it would be draconian to propel an accused into the throes of a trial. The liberty of an individual would constantly be imperiled at the hands of dubious officials of the police who may venture to falsely implicate a person.
It is for this reason that we would unhesitatingly conclude that the Chemical Examiner's report is an essential ; integral and inherent part of the investigation under the N.D.P.S. Act as it would lay the foundation of an accused's culpability without which a Magistrate would not be enabled to form an opinion and take cognizance of the accused's involvement in the commission of offence under the Act."
The coordinate Benches of this court in the cases of Rahul Vs. State of Punjab, CRR No.1016-2020, decided on 21.12.2020, Azuka Vs. State of UT, Chandigarh, CRR-765-2020, decided on 13.03.2020, Shankar Vs. State of Haryana, CRM-M-44412-2019, decided on 20.12.2019 and Akash Kumar @ Sunny Vs. State of 3 of 5 ::: Downloaded on - 02-11-2022 01:32:45 ::: CRR-1966-2022 -4- Haryana, CRR No.1731-2019 decided on 16.10.2019, had held that the challan under Section 173(2) Cr.P.C. having been filed even without the FSL report would not entitle the accused to be released on default bail under Section 167(2) Cr.P.C. However, different view had been taken by the coordinate benches and the coordinate Bench of this court in the case titled Julfkar Vs. State of Haryana, CRR-1125-2020 had referred the matter to the division bench in view of the conflict in judgments. It was also observed by a coordinate Bench in CRR-1135- 2020, Suresh Vs. State of Haryana, decided on 18.11.2020, while granting default bail to petitioner therein as challan was filed without FSL report, that in the event of the division bench opining that the challan filed without FSL report would be a complete challan, the State would be at liberty to prefer an application for cancellation of bail.
Another coordinate Bench of this court in CRR-1150- 2020, titled Rinku Vs. State of Haryana vide order dated 03.11.2020, had also opined that as the matter had been referred to the larger bench, in the meantime, the accused would be entitled to be released on default bail.
This court, in the case of State of Haryana Vs. Dildar Ram @ Dari (supra) has held that challan filed without FSL report would not be regarded as a complete challan and the accused would be entitled to default bail in terms of Section 167(2) Cr.P.C.
Therefore, as the challan had been filed without the FSL report in the instant case, the petitioner would be entitled to be released on default bail in terms of Section 167(2) Cr.P.C.
In view of the above, without expressing any opinion on 4 of 5 ::: Downloaded on - 02-11-2022 01:32:45 ::: CRR-1966-2022 -5- the merits of the case, the instant petition is allowed. The petitioner is ordered to be released on default bail on his furnishing requisite bonds to the satisfaction of the trial Court/Duty Magistrate concerned.
In the event of the Division Bench opining that the challan filed without FSL report would be a complete challan, the State would be at liberty to prefer an application for cancellation of bail.
(ASHOK KUMAR VERMA)
29.10.2022 JUDGE
Kothiyal
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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