The Punjab and Haryana High Court observed that the provisions of Section 36-A(4) of the NDPS Act insofar as the requirement of a report being made by the Public Prosecutor for extension of time is concerned, are mandatory in nature.
Brief Facts:
The petitioner was booked under Section 22(b) of the NDPS Act and accordingly, a challan was presented by the investigating agency which was not accompanied by Forensic Science Laboratory (FSL). The investigating agency did not file the FSL report even after the expiration of the statutory period for the completion of the investigation under the NDPS Act. The Additional Sessions judge rejected the bail plea of the accused when he moved an application for a grant of default bail under Section 167(2) CrPC. The court, however, on the ground that the investigating agency had already presented the final report with the clarification that the FSL report had not been received, extended the period of investigation.
Contentions of the Applicant:
The learned counsel for the petitioner argued that the investigating agency presented the challan without the report of the Forensic Science Laboratory (FSL) and the same could not be provided even after the expiry of 180 days, thus the investigation could not be said to be complete and the accused thus had the right to be granted bail under Section 167(2) CrPC. The counsel relied on the judgement in Ajit Singh @ Jeeta and Anr. v. State of Punjab to argue that a challan without FSL report would be an incomplete challan and the accused will thus be entitled to be granted bail. The counsel further relied upon the judgment in Uday Mohanlal Acharya v. State of Maharashtra and Hitendra Vishnu Thakur v. State of Maharashtra to argue that the order granting extension of time was erroneous as it is not the investigating agency but only the Public Prosecutor, who as per the provisions of Section 36-A(4) of the NDPS Act could have sought extension of time after presenting the report.
Contentions of the Respondent:
The learned counsel appearing for the state argued that the period of investigation had not elapsed as the court had already extended the same by one year. However, the fact that no report had ever been made seeking an extension of time under Section 36-A of the NDPS Act by the Public Prosecutor was not disputed by the counsel.
Observations of the Court:
The court observed that the FSL report is one of the factors which determines the nature of the substance recovered, thus it must be a part of the challan presented by the investigating agency within the stipulated time period of 180 days.
The court relied on the judgment in Ajit Singh @ Jeeta and Anr. v. State of Punjab where it was held that the accused would be entitled to be released on default bail if the challan was filed without the FSL report because of the reason that the said challan would be an incomplete one. The court further stated that since the FSL was not filed even after the completion of 180 days, the challan presented by the court would be deemed to be an incomplete one. The court observed that the Additional Sessions Judge misinterpreted the provisions of Section 36-A(4) of the NDPS Act by denying bail to the accused as no report had been filed by the Public Prosecutor seeking an extension of time.
The court granted the bail to the accused under Section 167(2) CrPC as the investigation was incomplete on the day when the petitioner moved the application.
The decision of the Court:
The court granted bail to the accused under Section 167(2) CrPC to the satisfaction of the concerned trial court/Magistrate.
Case Title: Chander Prakash v State of Haryana
Coram: Hon’ble Mrs. Justice Manjari Nehru Kaul
Case No.: CRR No. 1326 of 2023
Advocate for the Applicant: Mr. Navkiran Singh
Advocate for the Respondent: Mr. Chetan Sharma
Read Judgment @LatestLaws.com
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