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IN THE HIGH COURT OF KARNATAKA AT BENGALURU  DATED THIS THE 29TH DAY OF MARCH, 2022  BEFORE 

THE HON’BLE MR. JUSTICE M. NAGAPRASANNA  WRIT PETITION No.5934 OF 2022(GM-RES)

BETWEEN

MR. SAYYAD MOHAMMAD @ NASIM 

S/O ABDUL AZIZ 

AGED ABOUT 31 YEARS 

RESIDING AT ABDULLA MANZIL 

VENKATESH LAYOUT 

NEAR HANAFI MASJID 

KUSHALNAGAR 

KODAGU DISTRICT – 571 234. 

… PETITIONER 

(BY SRI. HASHMATH PASHA, SR. ADVOCATE A/W   SRI.KARIAPPA.N.A., ADVOCATE) 

AND

1. STATE OF KARNATAKA 

 BY ECONOMIC AND NARCOTIC CRIME   POLICE STATION 

 MANGALORE CITY – 575 001. 

2. MR.SANDEEP.J.S. 

 POLICE INSPECTOR 

 OF ULLA POLICE STATION 

 MANGALORE CITY – 575 001. 

 (BOTH ARE REPRESENTED BY 

R

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LEARNED STATE PUBLIC PROSECUTOR 

 HIGH COURT OF KARNATAKA) 

… RESPONDENTS 

(BY SMT. K.P.YASHODHA, HCGP) 

THIS WRIT PETITION IS FILED UNDER ARTICLES 226  AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO  QUASH THE ORDER DATED 03.01.2022 PASSED IN CRIME  NO.30/2021 ON THE FILE OF HON’BLE PRINCIPAL  DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE,  WHICH IS ARISING OUT OF CRIME NO.30/2021 OF  ECONOMIC AND NARCOTIC CRIME POLICE STATION,  MANGALORE CITY FOR OFFENCES U/S 25 AND 3 OF  ARMS ACT AND U/S.8(3), 20(B)(ii)(c) OF THE NDPS ACT AS  PER ANNEXURE-C AND CONSEQUENTLY RELEASE HIM  ON BAIL ON SUCH TERMS AND CONDITIONS. 

THIS WRIT PETITION HAVING BEEN RESERVED ON  22.03.2022, COMING ON FOR PRONOUNCEMENT OF  ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: 

ORDER

 The petitioner is before this Court calling in  question proceedings in Crime No.30 of 2021 registered  for offences punishable under Sections 25 and 3 of the  Indian Arms Act, 1959 and Sections 8(c), 20(B)(ii)(c) of  the Narcotic Drugs & Psychotropic Substances Act,  1985 (‘the Act’ for short).

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 2. Brief facts leading to the filing of the present  petition, as borne out from the pleadings, are as  follows:- 

 On 26-05-2021 on the basis of a report submitted  by the 2nd respondent/Police alleging that on  25-05-2021 when they were on rounds, they received  credible information that one accused involved in a

dacoity case is on the run towards Moodabidri in a car  and they followed the said car and found the car being  driven by Mohamed Farooq. The petitioner was seated  in the car and another Eicher Truck was moving  towards Moodabidri. Both the vehicles were intercepted  and the dickey of Skoda car was searched which  resulted in unearthing of 60.60 Kgs. of Ganja. The

Eicher Truck which was also seized was searched and  such search resulted in recovery of 157 Kgs. of Ganja.  It was seized and the accused were arrested and  produced before the Police for further action. The  Special Court under the Act on 26-05-2021 remanded

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the petitioner to judicial custody. On 20-11-2021 the  Police after investigation filed a final report/charge  sheet before the Court. The petitioner, after filing of the  charge sheet before the Court, has now knocked on the  doors of this Court in the subject petition, for  quashment of entire proceedings in Crime No.30 of  2021 and seeks an interim prayer for release by grant of  interim bail. 

 3. Heard the learned senior counsel Sri Hashmath  Pasha appearing for the petitioner and  Smt.K.P.Yashodha, learned High Court Government  Pleader appearing for the respondents. 

 4. The learned senior counsel would submit that  the petitioner is entitled to an interim bail as an interim  order and later quashment of proceedings on one  solitary ground viz., the charge sheet filed by the Police  purportedly after investigation on 20-11-2021 is a  defective charge sheet or an incomplete charge sheet, as

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the contraband substance has been sent for its test to  the Forensic Science Laboratory and the report is yet to  come. In the absence of the report, the substance that  was seized is unidentifiable and, therefore, becomes a  defective charge sheet. The Police have hurriedly filed an  incomplete charge sheet only to get over the rigour of  default bail under Section 167(2) of the Cr.P.C. He  would submit that filing of the final report being in  violation of Section 173(2) of the Cr.P.C., the petitioner  is entitled to be released forthwith on bail. In support of  his submissions, he would place reliance upon the  judgments in the cases of: 

(i) UNION OF INDIA v. BAL MUKUND AND  OTHERS 

(ii) NOOR AGA v. STATE OF PUNJAB AND  ANOTHER and 

(iii) CHANDRU KUNTHUR RAGHUVEGOWDA v.  STATE BY INSPECTOR OF CUSTOMS CIU,  BENGALURU.

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5. On the other hand, the learned High Court  Government Pleader would vehemently refute the  submissions of the learned senior counsel and submit  that mere non-filing of FSL report will not vitiate the  charge sheet that is filed, as it can always be filed in the  proceedings subsequently. Since contraband substance  being Ganja it can be easily identifiable by structure  and smell and FSL report is only a formality. She would  place reliance upon a Division Bench judgment of the  Bombay High Court in the case of MANAS KRISHNA  T.K. v. STATE and the judgment of the Apex Court in  the case of SUPERINTENDENT, NARCOTICS CONTROL  BUREAU, CHENNAI v. R.PAULSAMY1

6. I have given my anxious consideration to the  submissions made by the learned senior counsel and  the learned High Court Government Pleader and 

1(2000)9 SCC 549

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perused the material on record. In furtherance whereof,  the only issue that falls for my consideration is,  “Whether the charge sheet/final report filed by the  Police on 20-11-2021 is incomplete in the absence of FSL  report and resultantly, render entire proceedings  vitiated

7. The afore-narrated facts of seizure of goods, the  quantity and the contraband substance are not in  dispute. It was 60.60 Kgs. of Ganja in the car and 157  kgs. of Ganja in the truck. Thus, the seizures were of  Ganja and not any other contraband substance. The  petitioner was remanded to judicial custody on  26-05-2021 and before the period of default bail was to  be over, the Police filed a charge sheet on 20-11-2021.  The charge sheet was filed admittedly without the report  of FSL enclosed to the said charge sheet. Whether this  would entail release of the petitioner on default bail is  the issue to be considered. To consider the said issue it

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is germane to notice both Sections 167 and 173 of the  Cr.P.C. Sub-sections (1) and (2) of Section 167 of the  Cr.P.C. read as follows: 

“167. Procedure when investigation 

cannot be completed in twenty-four hours.— (1) Whenever any person is arrested and  detained in custody, and it appears that the  investigation cannot be completed within the  period of twenty-four hours fixed by section 57,  and there are grounds for believing that the  accusation or information is wellfounded, the  officer in charge of the police station or the police  officer making the investigation, if he is not below  the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the  entries in the diary hereinafter prescribed relating  to the case, and shall at the same time forward  the accused to such Magistrate. 

(2) The Magistrate to whom an accused 

person is forwarded under this section may,  whether he has or has no jurisdiction to try the  case, from time to time, authorise the detention of the accused in such custody as such Magistrate  thinks fit, for a term not exceeding fifteen days in  the whole; and if he has no jurisdiction to try the

case or commit it for trial, and considers further  detention unnecessary, he may order the accused  to be forwarded to a Magistrate having such  jurisdiction: 

Provided that— 

(a) the Magistrate may authorise the 

detention of the accused person, 

otherwise than in custody of the 

police, beyond the period of

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fifteen days, if he is satisfied  that adequate grounds exist for 

doing so, but no Magistrate shall  authorise the detention of the  accused person in custody under  this paragraph for a total period 

exceeding – 

(i) ninety days, where the  investigation relates to an 

offence punishable with 

death, imprisonment for 

life or imprisonment for a 

term of not less than ten 

years; 

(ii) sixty days, where the  investigation relates to any 

other offence, 

and, on the expiry of the said period of  ninety days, or sixty days, as the case may  be, the accused person shall be released on  bail if he is prepared to and does furnish  bail, and every person released on bail under  this sub-section shall be deemed to be so  released under the provisions of Chapter  XXXIII for the purposes of that Chapter; 

(b) no Magistrate shall authorise 

detention of the accused in custody of the  police under this section unless the  accused is produced before him in person  for the first time and subsequently every  time till the accused remains in the custody  of the police, but the Magistrate may extend  further detention in judicial custody on  production of the accused either in person  or through the medium of electronic video  linkage;

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(c) no Magistrate of the second class, 

not specially empowered in this behalf by 

the High Court, shall authorise detention in 

the custody of the police. 

Explanation I.—For the avoidance of 

doubts, it is hereby declared that,  notwithstanding the expiry of the period specified  in paragraph (a), the accused shall be detained in  custody so long as he does not furnish bail. 

Explanation II.—If any question arises 

whether an accused person was produced before  the Magistrate as required under clause (b), the  production of the accused person may be proved  by his signature on the order authorising  detention or by the order certified by the  Magistrate as to production of the accused person  through the medium of electronic video linkage,  as the case may be. 

Provided further that in case of a woman 

under eighteen years of age, the detention shall  be authorised to be in the custody of a remand  home or recognised social institution.” 

 (Emphasis supplied) 

In terms of Section 167 (2)(a) of the Cr.P.C., an accused  will be entitled to bail in the event the final report is not  filed within 90 days from the date on which the accused  was sent to judicial custody. Filing of charge sheet is  dealt with under Section 173 of the Cr.P.C. which reads  as follows:

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“173. Report of police officer on  completion of investigation.—(1) Every  investigation under this Chapter shall be  completed without unnecessary delay. 

(1A) The investigation in relation to rape of  a child may be completed within three months  from the date on which the information was  recorded by the officer in charge of the police  station. 

(2)(i) As soon as it is completed, the  officer in charge of the police station shall  forward to a Magistrate empowered to take  cognizance of the offence on a police report,  a report in the form prescribed by the State  Government, stating— 

(a) the names of the parties; 

(b) the nature of the information; 

(c) the names of the persons who  appear to be acquainted with the 

circumstances of the case; 

(d) whether any offence appears to  have been committed and, if so, 

by whom; 

(e) whether the accused has been  arrested; 

(f) whether he has been released on  his bond and, if so, whether with 

or without sureties; 

(g) whether he has been forwarded  in custody under section 170. 

(h) whether the report of medical  examination of the woman has 

been attached where 

investigation relates to an 

offence under section 376, 376A, 

376B, 376C 2 [376D or section 

376E of the Indian Penal Code 

(45 of 1860). 

 (Emphasis supplied)

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(ii) The officer shall also communicate, in  such manner as may be prescribed by the State  Government, the action taken by him, to the  person, if any, by whom the information relating  to the commission of the offence was first given. 

(3) Where a superior officer of police has  been appointed under section 158, the report  shall, in any case in which the State Government  by general or special order so directs, be  submitted through that officer, and he may,  pending the orders of the Magistrate, direct the  officer in charge of the police station to make  further investigation. 

(4) Whenever it appears from a report  forwarded under this section that the accused  has been released on his bond, the Magistrate  shall make such order for the discharge of such  bond or otherwise as he thinks fit. 

(5) When such report is in respect of a case  to which section 170 applies, the police officer  shall forward to the Magistrate along with the  report— 

(a) all documents or relevant extracts 

thereof on which the prosecution proposes  to rely other than those already sent to the  Magistrate during investigation; 

(b) the statements recorded under 

section 161 of all the persons whom the  prosecution proposes to examine as its  witnesses. 

(6) If the police officer is of opinion that any  part of any such statement is not relevant to the  subject-matter of the proceedings or that its  disclosure to the accused is not essential in the  interests of justice and is inexpedient in the public

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interest, he shall indicate that part of the  statement and append a note requesting the  Magistrate to exclude that part from the copies to  be granted to the accused and stating his reasons  for making such request. 

7) Where the police officer investigating the 

case finds it convenient so to do, he may furnish  to the accused copies of all or any of the  documents referred to in sub-section (5). 

(8) Nothing in this section shall be deemed 

to preclude further investigation in respect of an  offence after a report under sub-section (2) has  been forwarded to the Magistrate and, where  upon such investigation, the officer in charge of  the police station obtains further evidence, oral or  documentary, he shall forward to the Magistrate  a further report or reports regarding such  evidence in the form prescribed; and the  provisions of sub-sections (2) to (6) shall, as far as  may be, apply in relation to such report or reports as they apply in relation to a report forwarded  under sub-section (2).” 

Section 173 of the Cr.P.C. (supra) deals with filing of  final report by the Police after investigation. Section  173(2) of the Cr.P.C. mandates that once investigation is  completed the officer in-charge of a Police Station shall  forward to the Magistrate empowered to take cognizance  of the offence on the final report, indicating the factors  that are narrated in sub-section (2) of Section 173.

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Section 173(5) mandates that when such report is in  respect of a case to which Section 170 applies, the  Police Officer shall forward to the Magistrate along with  the report all documents or relevant extract thereof on  which the prosecution proposes to rely on, other than  those already sent to the Magistrate during investigation  and the statements recorded under Section 161 of all  the persons whom the prosecution proposes to examine

as its witnesses. Section 173(8) of the Cr.P.C. deals  with power of the Magistrate to direct further  investigation to be conducted in a given case. Therefore,  it is open for the Police to conduct further investigation  in terms of Section 173(8) of the Cr.P.C. This is the  frame work on which release of bail of an accused and

filing of charge sheet are dealt with. It is these that are  germane to be noticed in the case at hand. 

8. The admitted fact is that FSL report was not yet  in place when the Police filed the charge sheet on

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20-11-2021. The issue whether the petitioner would get  a right to get himself enlarged on bail in the absence of  FSL report in the charge sheet need not detain this  Court for long as the Division Bench of the Bombay  High Court in the case of MANAS KRISHNA T.K. v.  STATE2 (supra) was answering a reference to the  Division Bench in view of conflicting views of two  learned single Judges on the very issue of an accused  becoming entitled to enlargement on default bail on the  ground that FSL report did not accompany the final  report. The Division Bench answering the question  holds as follows: 

“2. The main issue which falls for 

determination in this reference is whether, in a case  under the NDPS Act, the investigation can be said to  be complete within the period prescribed under  Section 167 (2) of the Criminal Procedure Code  (Cr.PC), when a police report under Section 173  (2) is filed before the Special Court without any  CA/FSL report along. If, based upon such a  police report, an investigation is held as  incomplete, then, the accused will be entitled to  default bail. However, if the investigation is 

2 2021 SCC ONLINE BOM.2955

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held as complete, no question of default bail  would arise. 

3. This reference arose on the account of the  following:— 

(a) On 07.01.2020, FIR No. 5/2020 was  registered at the Anjuna Police Station against the applicant/accused alleging commission of an offense under section 20 (C) of the NDPS Act, 1985. The FIR alleged that the accused was found in possession of a commercial quantity (0.5 gms) of L.S.D. contraband  under the NDPS Act. The accused was arrested on  the same date i.e. 07.01.2020. The accused’s bail  application No. 76/2020 was rejected by the Special Court 29.06.2020. 

(b) The Investigating Officer (IO) filed a report  under Section 173 (2) Cr.PC (Charge-sheet) before  the Special Court on 04.07.2020. This was the 179th day since the arrest of the first remand. This means  that the charge-sheet was filed within the 180 days time limit provided in Section 167 (2) Cr.PC r/w  Section 36(A)(4) of the Narcotic Drugs & Psychotropic  Substances Act (NDPS Act). 

(c) Along with the charge-sheet, the IO  also filed before the Special Court on  04.07.2020 itself several documents in terms of  Section 173 (5) of Cr.PC. This included a  Panchanama in which it was recorded that a  field test was conducted at the spot where the  accused was apprehended and that the results  suggested that the substance recovered from  the shoulder bag carried by the accused, was  indeed L.S.D. However, the IO, along with the  charge sheet, did not file any Chemical  Analyser (CA)/FSL report concerning the sample  attached and sent to the laboratory. Such  CA/FSL report was ultimately filed beyond the

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period prescribed in section 167(2) Cr.PC  confirming that the substance recovered was  indeed L.S.D. 

(d) The accused had applied for bail before  this Court on 07.07.2020 but withdrew this  application on 07.08.2020 with liberty to apply  before the Special Court. Such bail application was

filed on 22.09.2020 but was rejected on 21.11.2020. The accused then applied for bail before this Court vide Criminal Misc. Application (Bail) (Filing) no. 88  of 2021 (the present application). 

(e) Mr. Poulekar relied on the following set of  decisions which according to him, support the  aforesaid position urged by him : (i) Sunil Vasantrao  Phulbande v. State of Maharashtra, (2002) 3 Mah LJ  689, (ii) Punjaram v. State of Maharashtra, 2005 Cri  LJ 4658, (iii) Ranjeet Manohar Machrekar v. The  State of Maharashtra, Criminal Bail Application No.

509/2014 (Bombay), (iv) Manik Sahebrao Chaugule  v. State of Maharashtra, Criminal Bail Application  No. 241/2017 (Bombay), (v) Seema Raju Panchariya  v. The State of Maharashtra, Criminal Bail  Application No. 65/2018 (Aurangabad), (vi) Sagar  Parshuram Joshi v. The State of Maharashtra, Bail  Application (ST) No. 4761/2020 (Bombay). 

(f) On the other hand, the Learned Public  Prosecutor (PP) pointed out to the Learned Single  Judge, a set of judgments that might invite a finding  that the decisions relied on by Mr. Poulekar are  either ‘per incuriam’ or at any rate, in direct conflict.  The decisions relied on by the learned Public  Prosecutor included the following : (i) Balaji  Vasantrao Suwarnkar v. State of Maharashtra, 1992  Mah LJ 159, (ii) State of Maharashtra v.  Sharadchandra Vinayak Dongre, (1995) 1 SCC 42,  (iii) Babu s/o Rakhmanji Khamkar v. The State of  Maharashtra, (1995) 4 Bom CR 335, (iv) Rohini

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Mahavir Godse v. State of Maharashtra, (1996) 2  Mah LJ 492, (v) Rafael Palafox Garcia v. Union of  India, 2008 All M.R. (Cri) 3031, (vi) Sheikh Shabbir  s/o Mohd Shafi v. State of Maharashtra, Criminal  Application no. 143/2011 (Nagpur Bench), (vii)  Srihari Mahadu Valse v. The State of Maharashtra,  Criminal Bail Application No. 3284/2018, (viii)  Dheeraj Wadhawan v. C.B.I. – 2020 SCC OnLine  Bom 9461. 

(g) Confronted with the rival sets of judgments,  the Learned Single Judge, by her order dated  07.07.2021 opined that the following questions arise  and can be more advantageously considered by the  Division Bench of this Court:— 

i. Whether the presentation of a report  under Section 173(2) Cr.PC. by the police  without the report of Chemical Analyser/FSL  amounts to incomplete challan and in the  absence of any extension of time under Section  36-A(4) of the NDPS Act, whether the accused  is entitled to bail under Section 167(2) Cr.P.C.? 

ii. Whether, in a charge-sheet under  NDPS Act, accompanied by a field testing  report which is a part of the record, can be  labelled as an incomplete report, simply  because it is not accompanied by a report of  Chemical Analyser/FSL? 

iii. What is the legal efficacy of “Drug  Law Enforcement, Field Officers’ Handbook”  issued by the Narcotics Control Bureau,  Ministry of Home Affairs, Government of  India? 

(h) Based on the above opinion, the Registrar  (Judicial-I) at Bombay, vide letter dated 22.07.2021  informed the Registrar (Judicial) at Goa that the

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Hon’ble the Chief Justice has been pleased to  approve the constitution of Division Bench for  answering the questions raised by the Hon’ble Court (Coram : M. S. Jawalkar, J.) in Criminal  Miscellaneous Application (Bail) (Filing) No. 88/2021  and to place the same before this Division Bench for  consideration. 

… … … 

42. Therefore, on the analysis of the  statutory provisions, as also the decisions that  have analyzed various shades of such statutory  provisions, we believe that a police report or a  charge sheet containing the details specified in  Section 173(2), if filed within the period  prescribed under Section 167(2) is not vitiated  or incomplete simply because the same was not  accompanied by a CA/FSL report and, based  thereon, there is no question of the accused  insisting on default bail. 

… … … 

61. In the precise context of cases under the  NDPS Act, there is a long line of decisions delivered  by the learned Single Judges of our Court in  Suwarnkar (supra), Rafael Palafox Garcia (supra),  Aleksander Kurganov (supra), Shrihari Valse (supra),  and Sheikh Shabbir (supra) that have taken the view that a charge-sheet unaccompanied by a CA/FSL  report is not incomplete and therefore, where the  same is filed within the prescribed period, the  accused, cannot insist on default bail. These  decisions according to us, reflect the legal position  correctly, and therefore, we endorse them. 

62. The contention similar to what is now  raised was rejected in Rafael Palafox Garcia (supra).  Besides, there can be no general rule that the

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Magistrate or the Special Court can never take  cognizance of any offense under the NDPS Act in the absence of a CA/FSL report. Ultimately, that will be  a matter which will have to be decided on the facts of each case by the Magistrate or the Special Court as the case may be. 

63. Further, the contention that a Magistrate  or the Special Court, in any NDPS case, is not even competent to take cognizance of any offense based  only on a field testing report as reflected in the  Panchanama or otherwise in the absence of CA/FSL  report is again, too wide a proposition to commend  acceptance. Ultimately, a Magistrate or the Special

Court will have to assess the charge sheet and, if  necessary, the documents and the statements  produced under Section 173(5) and thereafter decide whether any case is made out for taking cognizance  of the offense. 

64. For example, in Jagdish Purohit v. State of  Maharashtra, (1998) 7 SCC 270, the Hon’ble  Supreme Court after rejecting the CA/FSL report  sustained the conviction by accepting the evidence of  the members of the raiding party to prove that the  powder which was found from the factory was  methaqualone. The witnesses had stated that they  had carried a kit to the field and had received  sufficient training and had sufficient knowledge of narcotic substances and methods of testing them.  This evidence was found sufficient to sustain a  conviction even after ignoring CA/FSL report.  Therefore, if a conviction could be sustained on such  evidence, surely, cognizance of the offense can also  be taken based on such material produced along  with the charge sheet. All this will have to be  assessed on a case-to-case basis and therefore, the general proposition as urged on behalf of the  accused cannot be accepted.

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65. There is and there can perhaps never be  any dispute with the proposition that the right of a  default bail in terms of Section 167(2) is a very  valuable right that is now even elevated to the status  of a fundamental right under Article 21 of the  Constitution of India. The several decisions like M.  Ravindran (supra), Rakesh Paul (supra), relied on  behalf of the accused, in this regard, therefore, need  not even be discussed because there is and there  can be no quarrel with the proposition laid down  therein. However, as was explained by the Hon’ble  Supreme Court itself in Dinesh Dalmiya (supra), such  a right of default bail, although is a valuable right,  the same is a conditional one. The condition  precedent being pendency of the investigation.  Therefore, once the investigation is complete with the  filing of a police report containing the details  specified under Section 173(2), the question of a  claim or grant for default bail does not arise. 

66. For all the aforesaid reasons, we hold that  the presentation of a police report under Section  173(2) unaccompanied by a CA/FSL report does not  amount to any incomplete police report or any  incomplete charge sheet/challan even in the absence

of an extension of time under Section 36-A(4) of the  NDPS Act. Based thereon therefore the accused  cannot insist upon a default bail. 

67. Similarly, we hold that a police report  under Section 173(2) or a charge sheet/challan  accompanied by field testing reports as reflected in  the Panchanama or otherwise also cannot be labeled  as an incomplete police report/charge sheet/challan

simply because the same was not accompanied by a  CA/FSL report. 

68. Question no. (i) and (ii) in this reference  are answered accordingly.

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… … … 

80. For all the aforesaid reasons we hold that  the Drug Law Enforcement Field Officers’ Handbook  issued by the NCB has no legal efficacy, in the sense  that the handbook has no statutory flavor or the  handbook is not a set of executive instructions  issued by the Central Government as contended by  Mr. Gaonkar. Question No. (iii) is answered  accordingly. 

81. Resultantly, we answer this reference  by holding the following: 

(a) Question no. (i) is answered by holding  that even in an NDPS case a police report  containing the details prescribed under Section  173(2) Cr.P.C. is a complete police report or a  charge sheet or a challan even if it is  unaccompanied by a CA/FSL report. If such  police report is filed within the period  stipulated under Section 167(2) Cr.P.C. r/w.  Section 36-A(4) of the NDPS Act, the accused  cannot insist upon a default bail. 

(b) Question no. (ii) is answered by holding  that in an NDPS case, a charge sheet  accompanied by a field testing report as  reflected in the Panchanama or otherwise also  cannot be labelled as an incomplete police  report/charge sheet/challan simply because the  same was not accompanied by a CA/FSL report. 

(c) Question no. (iii) is answered by  holding that the Drug Law Enforcement Field  Officers’ Handbook issued by the NCB has no  legal efficacy, in the sense that the handbook  has no statutory flavour or the handbook is not

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a set of executive instructions issued by the  Central Government.” 

 (Emphasis Supplied) 

The Division Bench in the afore-mentioned judgment  has delineated inter-play between Section 167(2) and  173 of the Cr.P.C. and has finally held that even if the  charge sheet is not accompanied by a field testing report  it cannot be labeled as in-complete police report simply  because it was not accompanied by FSL report.  Resultantly, the accused would not become entitled to  default bail for the reason that it was not accompanied  by FSL report. 

9. FSL report sometimes depends upon the nature  of contraband substance. In the case at hand the  contraband substance is Ganja. Ganja is a substance  that can be easily identifiable by its smell, texture and  structure. A learned Single Judge of the Bombay High  Court, in the case of SAGAR PARASHURAM JOSHI VS.

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STATE OF MAHARASHTRA3, while considering the  handbook for guidance of Drugs Law Enforcement  Officers, has held as follows: 

“18. Before adverting to the arguments of the 

learned counsel for the applicant, it may be stated that the Director General of the Narcotic Control  Bureau has issued a field officer’s hand-book for  guidance of Drugs Law Enforcement Officers.  Chapter VI refers to, ‘Drug Detection Kit’, the relevant  paragraph is as under: 

Drug Detection Kit: These kits assist the 

DLEO in forming a reasonable belief about a  substance being a drug. The kit is a portable case  containing different reagents that are used to test a  small quantity of the substance recovered and  determine the nature of the substance based on the  color range resulting from the reactions of the  suspect substance with the reagents. There are three  types of test kits used at present : Narcotic Drugs Kit  to test traditional drugs like Ganja, Charas, Opium Heroin, Cocaine, and the like; Precursor Chemicals  Kit to test Acetic Anhydride, Ephedrlne,  Pseudoephedrlne etc. and Ketamlne Kit. All these  kits are very user friendly and come with an  Instruction sheet to guide the the user draw  appropriate Inference. It is essential that the DLEO  conducts the test, matches the resultant color and  forms a reasonable belief that the substance gives  positive color pattern for a drug. This process must  be recorded In the Panchanama.” 

19. I have perused the hand-book. Chapter VII 

of the hand-book is about ‘Drug Identification and 

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Field Testing’. Chapter I enumerates, check-list, for  Drugs Law Enforcement Officers, while executing the field operation, to ensure that the Drugs Law  Enforcement Officer does not overlook anything,  which might subsequently affect the case. Item No.  10 in the check-list reads as under: 

“10. Were all recovered suspect substances field  tested with Drug Detection Kits/Precursor Testing  Kits and the matching colour results to show  presence of ND, PS or CS and was it all  documented?’ 

20. In relation to the identification of drug, it  states – 

“Identification: Natural narcotic drugs  like Ganja, Charas, Opium Poppy can be easily  identified by their color, texture and smell. But,  most of the drugs abused today are refined and  processed substances and are mostly circulated  as white, off-white or brown powder, crystals or  flakes or colorless odorless liquids. It is very  difficult to identify a substance as a drug  unless it is tested with different reagents.” 

21. So far as the Drug Detection Kit is  concerned, it is stated in the hand-book that these kits assist Drugs Law Enforcement Officers in  forming reasonable belief about substance being a  drug. The kit is a portable case containing different  reagents that are used to test a small quantity of  substance recovered and to determine the nature of  substance based on the colour range resulting from  the reactions of the suspect substance with reagents.  It is stated that this process must be recorded in the  panchanama. 

22. Obviously, these tests are only indicative  and preliminary tests and need further confirmation

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for which sample is sent to a laboratory. Instructions  in Hand-book also suggest preparation of the test  memo in triplicate on the spot and facsimile in print  of seal used in sealing the envelopes, to be affixed  on test memos

(Emphasis supplied) 

The fact that ganja, unlike other synthetic drugs, is  recognizable by the substance or identifiable by its  smell, texture and structure. This is what is held by the  Bombay High Court in the aforesaid case. Therefore,  merely because the charge sheet did not accompany  FSL report, the right of the petitioner cannot swing back  to contend that he is entitled to be enlarged on bail. As  long as the police report containing details as necessary  under Section 173(2) is filed within the stipulated  period, the accused will not get a right to contend that  he is entitled to default bail on the ground that the final  report filed is in violation of Section 173(5) of the Cr.P.C. 

10. Section 173(8) of the Cr.P.C. directs further  investigation in the matter. If the Police are entitled to  further investigation, further documents can also be

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filed before the Court. Therefore, the FSL report is open  to be placed before the Court. On this ground, the  petitioner applied for default bail before the Sessions  Judge. The Sessions Judge refused to accede to the  submissions made by the petitioner holding that the

principles laid down in the judgments of various High  Courts would not entitle the petitioner to a default bail  merely because FSL report is not part of the charge sheet. I find no error or infirmity in the order passed by  the learned Sessions Judge declining to grant default  bail. 

 11. The learned senior counsel lays much  emphasis on Standing Instructions of Government in  Standing Instructions No.1/88. The Standing  Instructions read as follows: 

NARCOTICS CONTROL BUREAU, 

NEW DELHI 

Standing Instructions No.1/88 

 1.18 Expeditious Test.

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Expeditious analysis of narcotic drugs and 

psychotropic substance is of essence to all  proceedings under N.D.P.S. Act, 1985. In many  cases the Court may refuse to extend  police/judicial remand beyond 15 days in the  absence of a chemical report. Accordingly, it is  essential that the analysis is completed and the  report is despatched within 15 days from the  date of receipt of the sample. However, where  quantitative analysis is requires longer time, the  results of the qualitative test should be  despatched to the officer from whom the samples  were received within the aforesaid time limit on  the original copy of the Test Memo so that court  proceedings can start immediately. In the next 15  days the results of quantitative test (purity of the  drug) should also be indicated on the duplicate  test memo and sent to the officer from whom the  samples were received.” 

The Standing Instructions directs that the analysis report should be despatched within 15 days from the  date of receipt of the sample. 

12. The learned senior counsel placed reliance on  two judgments of the Apex Court to demonstrate that  the aforesaid Standing Instructions has been considered  with approval by the Apex Court. The Apex Court in the

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case of UNION OF INDIA v. BAL MUKUND AND  OTHERS4 (supra) has held as follows: 

“36. There is another aspect of the matter 

which cannot also be lost sight of. Standing  Instruction 1/88, which had been issued under  the Act, lays down the procedure for taking  samples. The High Court has noticed that PW 7  had taken samples of 25 gm each from all the five  bags and then mixed them and sent to the  laboratory. There is nothing to show that  adequate quantity from each bag had been taken.  It was a requirement in law.” 

The Apex Court in the case of NOOR AGA v. STATE OF  PUNJAB AND ANOTHER5 (supra) has considered the  Standing Instructions and has held as follows: 

“89. Guidelines issued should not only be 

substantially complied with, but also in a case  involving penal proceedings, vis-à-vis a  departmental proceeding, rigours of such  guidelines may be insisted upon. Another  important factor which must be borne in mind is  as to whether such directions have been issued in  terms of the provisions of the statute or not. When directions are issued by an authority having the  legal sanction granted therefor, it becomes  obligatory on the part of the subordinate  authorities to comply therewith. 

4(2009) 12 SCC 161

5(2008) 16 SCC 417.

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90. Recently, this Court in State of Kerala 

v. Kurian Abraham (P) Ltd. [(2008) 3 SCC 582] ,  following the earlier decision of this Court in  Union of India v. Azadi Bachao Andolan [(2004)  10 SCC 1] held that statutory instructions are  mandatory in nature.” 

In the case of BAL MUKUND the Apex Court no doubt  considers Standing Instructions 1/88 and holds that it  is requirement in law. In NOOR AGA (supra), the Apex  Court considers importance of guidelines of Standing  Instructions. This Court in the case of CHANDRU  KUNTHUR RAGHUVEGOWDA v. STATE BY  INSPECTOR OF CUSTOMS CIU, BENGALURU6 (supra)  also observes that if quantitative analysis of the sample  was not carried out there would be infraction of  Standing Instructions. This Court in CHANDRU  KUNTHUR RAGHUVEGOWDA holds as follows: 

“19. The report dated January 13, 2017 

issued by the Custom House Laboratory,  Chennai, shows that the six samples answered  the test for presence of Pseudoephedrine  Hydrochloride. The foot note contained in the  report is categorical to the effect that ‘quantitative  analysis’ of the sample was not carried out. Thus, 

6ILR 2017 KAR 4053

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there has been infraction of Standing Instruction  No. 1/88. Compliance with the ‘Standing  Instruction’ is a requirement of law as held by the Hon’ble Supreme Court in the case of Union of  India v. Bal Mukund (supra).” 

MANAS KRISHNA T.K. (supra) considers entire  spectrum of law and holds that merely because FSL  report is not found in charge sheet, particularly, if  contraband substance is Ganja would not vitiate the

charge sheet for it to become contrary to Section 173(2)  of the Cr.P.C. and consequence thereof given two  divergent results – (i) quashment of proceedings and (ii)  enlargement on default bail would not arise. 

13. The law laid down by the Division Bench of  Bombay High Court in the circumstance is apposite, as  the Apex Court in the case of BAL MUKUND or NOOR  AGA does not consider the fact whether filing of the  charge sheet without FSL report would vitiate the  proceedings.

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 14. In the light of the preceding analysis, it is the  considered view of this Court that the petitioner does  not get a right to demand for enlargement on the ground  of default bail under Section 167(2) of the Cr.P.C.

merely because the charge sheet/final report filed by  the Police after investigation is without FSL report, as  non-filing of the FSL report by itself would not make the  charge sheet contrary to Section 173(2) of the Cr.P.C. 

 15. In the result, the Writ Petition lacks merit and  is dismissed. 

Sd/- 

JUDGE 

bkp 

CT:MJ 

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