The Punjab and Haryana High Court has made it clear that the mere filing of an FSL report with the chargesheet in a NDPS case will not be a ground to cancel default bail granted to an accused.
A brief overview of the case law and its implications for criminal procedure
The Punjab and Haryana High Court has recently clarified that the filing of a forensic science laboratory (FSL) report along with the chargesheet in a case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) will not be a valid reason for cancelling the default bail granted to an accused under Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC). This decision, delivered by Justice Deepak Gupta, explained the scope and application of Section 167(2) of CrPC and its relationship with the provisions of the NDPS Act. It dealt with the facts and circumstances of a case where a person was arrested for possessing MDMA, a psychotropic substance.
Facts about NDPS case
The petitioner, Bharat Kumar, was arrested on 18.02.2020 for allegedly possessing 21.54 grams of MDMA, a psychotropic substance under the NDPS Act. He was remanded to judicial custody and the investigation was entrusted to the Special Task Force (STF). The STF sent the seized substance to the FSL for analysis and report.
As per Section 36A(1)(a) of the NDPS Act, read with Section 167(2) of CrPC, the investigation in such cases has to be completed within 180 days from the date of arrest. However, in this case, the STF failed to file the chargesheet within this period and sought extension of time from the Special Court under Section 36A(4) of the NDPS Act.
Meanwhile, the petitioner filed an application for default bail under Section 167(2) of CrPC on 12.09.2020, after spending more than 180 days in judicial custody. The Special Court granted him interim bail till the filing of the chargesheet and the FSL report.
The petitioner challenged this order before the High Court under Section 482 of CrPC, seeking directions to set aside the condition of interim bail and grant him default bail without any restriction.
The petitioner contended that Section 167(2) of CrPC does not envisage any interim bail till the filing of the chargesheet and that he had a statutory right to be released on bail as the investigation was not completed within 180 days. He also contended that he was not aware of any application filed by the STF for extension of time and that no notice was given to him in this regard.
The respondent, State of Haryana, opposed the petition and submitted that the STF had filed an application for extension of time on 14.09.2020, which was pending before the Special Court. The respondent also submitted that the FSL report was received by the STF on 15.09.2020 and that it confirmed that the seized substance was MDMA. The respondent further submitted that the chargesheet was filed on 16.09.2020 along with the FSL report.
The main issue before the High Court was whether the petitioner was entitled to default bail under Section 167(2) of CrPC without any condition or restriction as the chargesheet and FSL report were filed after expiry of 180 days from his arrest.
Legal Provisions for NDPS case
The relevant legal provisions for this issue are:
- Section 167(2) of CrPC, which provides for grant of default bail to an accused who is prepared to furnish bail if the investigation is not completed within prescribed period.
- Section 36A(1)(a) of NDPS Act, which provides that in cases involving commercial quantity of narcotic drugs or psychotropic substances, the prescribed period for completion of investigation shall be 180 days.
- Section 36A(4) of NDPS Act, which provides that in special circumstances and for reasons to be recorded in writing, the Special Court may extend the period for completion of investigation up to one year.
- Section 482 of CrPC, which provides for inherent powers of High Court to make such orders as may be necessary to give effect to any order under CrPC or to prevent abuse of process of court or otherwise to secure ends of justice.
Analysis of NDPS case
The High Court analysed the case law on this issue and observed that:
- The Supreme Court in Rakesh Kumar Paul v. State Of Assam held that the right to default bail under Section 167(2) of CrPC is an absolute and indefeasible right and cannot be defeated solely by filing of chargesheet.
- The Supreme Court in Bikramjit Singh v. State Of Punjab held that the right to default bail under Section 167(2) read with Section 36A(1)(a) of NDPS Act is also an absolute and indefeasible right and cannot be defeated by filing of FSL report along with chargesheet.
- The Supreme Court in Union of India v. Shiv Shanker Kesari held that the extension of time for completion of investigation under Section 36A(4) of NDPS Act can only be granted by the Special Court after hearing the accused and recording reasons in writing.
Based on these precedents, the High Court held that the petitioner was entitled to default bail under Section 167(2) of CrPC without any condition or restriction as the chargesheet and FSL report were filed after expiry of 180 days from his arrest. The High Court further held that:
- The filing of FSL report along with chargesheet does not affect the right to default bail as it is not a part of the investigation process and does not require any further action by the investigating agency.
- The filing of application for extension of time by the STF does not affect the right to default bail as it was filed after the expiry of 180 days and without giving notice to the petitioner or hearing him.
- The grant of interim bail till the filing of chargesheet and FSL report by the Special Court was erroneous and contrary to law as it amounted to imposing a condition on the right to default bail.
The High Court concluded that there was merit in the petition filed by petitioner and that he was entitled to default bail under Section 167(2) of CrPC without any condition or restriction. The High Court set aside the order passed by Special Court and directed the petitioner to be released on bail on furnishing personal bond and surety bond.
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