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        CRM-M-11271-2021(O&M)                                           -2-

Thereafter, investigation was set into motion leading to the presentation of the challan before the trial Court on 30th October, 2020.

Learned counsel submits that no doubt the challan under Section 173 Cr.P.C., was indeed presented within the prescribed statutory period of 180 days however since the FSL report was not part of the challan, it would be deemed to be an incomplete challan thus entitling him to the grant of default bail under the provisions of Section 167(2) Cr.P.C., read with Section 36A(4) of the NDPS Act.

6 of 10 CRM-M-11271-2021(O&M) -7- committed or not. In other words, investigation would be deemed to have been completed in cases under the NDPS Act only after an opinion has been formed and given by the chemical examiner qua the nature of the articles/substance sent to it by the investigating agency. Therefore, without a doubt in cases under NDPS Act, FSL report would be a decisive document to link the accused with the alleged commission of crime for attracting the mischief of offences under the NDPS Act. It is precisely for this reason that it becomes imperative in cases under the NDPS Act that the challan is mandatorily accompanied by FSL report. Unless and until no definite opinion is given by the chemical examiner qua the nature of the articles etc., sent, it would lead to no other inference but the one that the investigation is still incomplete as 'smell' and 'sight' of the articles/substance seized by the investigating agency cannot be taken to be a conclusive proof of the nature of the articles/substance. Moreover, in the absence of the FSL report not being part of the challan, the Magistrate would be handicapped to proceed further and take cognizance of the offences. FSL report in cases under NDPS Act is an intrinsic part of the investigation and it is for this reason that investigation of cases under the NDPS Act would have to be kept at a pedestal, different from investigation which is carried out in cases under the Indian Penal Code and certain other statutes.

Reverting to the case in hand as per contents of the FIR itself, the police allegedly recovered 'Ganja patti'. A perusal of Section 2(iii)(b)of NDPS Act, reveals that Ganja patti i.e., leaves of Ganja are excluded from the definition of cannabis(hemp) and thus would not attract the mischief of an offence under NDPS Act. Yet again in the given circumstances, it was thus most crucial to get a definite opinion qua the nature of the substance 7 of 10 CRM-M-11271-2021(O&M) -8- and the non-filing of the FSL report with the charge-sheet indicates that the investigation was still incomplete. The claim of the investigating agency in the challan that the recovered substance attracted the mischief of an offence under NDPS Act without it being supported by the FSL report is nothing but an opinion given by an amateur on the basis of just 'smell' and 'sight' which would undoubtedly be a travesty of justice thereby subjecting the accused to the agony of a trial. The detention of the petitioner in these circumstances amounts to depriving him of his personal liberty.

Still further, on a pointed query to the learned State counsel as to whether any report in terms of Section 36A(4) of the NDPS Act had been made to the Special Court concerned seeking extension of time for filing of the FSL report, she has replied in the negative. Hence, as conceded by the learned State counsel since no report as envisaged under Section 36A(4) NDPS Act was ever made to the Court concerned by the Public Prosecutor, this Court has no hesitation in concluding that the challan which was presented was an incomplete one as a result of which the petitioner has now acquired his indefeasible right to default bail.