Law Web: Whether accused is entitled to get default bail if chargesheet in NDPS Act is filed without Analyst Report?

10. Therefore, the point to be decided is whether the

investigation is completed or not within the period mentioned. The

investigation is defined in Section 2(h) of Cr.P.C. Section 2(h) says

that "investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf". Therefore, the investigation includes all the proceedings

under the Code for the collection of evidence. In this case, the

investigating officer has already taken proceedings to get the analyst

report by submitting requisition before the court concerned and it is

already reached the laboratory. Therefore, it cannot be said that

simply because the analyst report is not received from the laboratory,

the investigation is not complete. Therefore, if the investigating officer reported that the requisition for getting the analyst report is already submitted before the authority concerned, and the lab report is awaited, it cannot be said that the investigation is incomplete. But if the investigating officer is mainly relying upon a lab report to prove his case, and even in such a situation, a final report is filed without the report, it cannot be said that it is a final report as contemplated under law. Section 173 of the Criminal Procedure Code says about the submission of the final report. Section 173 Cr.P.C says that, after the conclusion of the investigation, the officer in charge of the police station shall forward the report in the form prescribed with the details mentioned therein. If the investigating officer after the investigation concluded that the offence alleged against the petitioner is maintainable based on the documents submitted before the Court, it can be treated as a complete report u/s.173 Cr.P.C. In such a situation, the investigating officer can submit before the Court that the analyst report is not received and that is a supplementary evidence or corroborative evidence to prove the charge sheet. In such circumstances, it cannot be said that the final report submitted before the court concerned is a defective final report. But in cases where the prosecution cannot prove a case without the aid of the analyst report and if a final report is filed in such cases without the analyst report, it can only be treated as an incomplete final report and in such situation, it cannot be said that the petitioner is not entitled default bail at that stage. Therefore, the entitlement of default bail u/s.167 Cr.P.C is to be decided based on the facts of each case. If the prosecution is relying the analyst report as a corroborative piece of evidence, it cannot be treated that if the final report is submitted without analyst report, that is an incomplete report. It cannot be said in such a situation that the investigation is not complete especially because Section 2(h) of the Cr.P.C states that the investigation includes all the proceedings under the court for the collection of evidence. If the investigating officer already completed the proceedings to get an analyst report by submitting appropriate

requisition before the court and the court concerned forwarded the

same to the laboratory, it cannot be said that simply because the

analyst report is not produced, the investigation is not completed.

What is necessary to get default bail u/s.167 (2)Cr.P.C is the failure to complete the investigation within the time prescribed for

investigation. Once the investigating officer after completing the

investigation and sending the requisition to the authority concerned to get the analyst report, submitted the final report, it cannot be said

that there is an incomplete final report unless it is a case in which the

entire prosecution case is relying solely based on the analyst report.

In this background, the present bail application is to be considered.

11. Admittedly, Hashish oil and MDMA seized from the apartment

are commercial quantities. The detecting officer specifically stated

that the identification of Hashish oil and MDMA are confirmed through the Excise Inspector. Whether the Excise Inspector is competent or an expert to identify the contraband as Hashish oil or MDMA is a matter of evidence. While considering a bail application u/s.439 Cr.P.C, this court cannot go into such questions and conclude that the Excise Inspector who identified the article as MDMA and Hashish oil is not an expert or a competent authority. In this case, admittedly the requisition for getting the analyst report is already submitted and the matter has already reached the lab concerned. The ADGP also submitted that the report will be obtained within two weeks. In this case even though the prosecution is relying the analyst report, they rely on the same to corroborate the oral evidence already collected. Hence it cannot be said that the final report submitted in this case is incomplete and the petitioner is entitled default bail.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

B.A.No.5747 of 2021

PRESENT

MR. JUSTICE P.V.KUNHIKRISHNAN

SAMEEER Vs STATE OF KERALA

Dated this the 8th day of September, 2021

A short point, ofcourse an interesting point, is raised by Advocate

Smt.Anitha Mathai Muthirenthy, the counsel for the petitioner in this

bail application. According to the counsel, the petitioner is entitled to

statutory bail u/s. 167(2) of the Criminal Procedure Code (for short

Cr.P.C) because no complete final report is filed before the court

concerned, even after 180 days from the date of detention of the

petitioner.

2. The facts are like this:

The petitioner is the 1st accused in Crime No.91 of 2021 of

Central Police Station, Ernakulam. The offences alleged against the

petitioner are u/s.20(b)(ii)(C), 22(C), and 29 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (for short NDPS Act). The

prosecution case is that the petitioner was residing in an apartment

on the 2nd floor of Njarakkattu Residency in Kunnappally Lane in

Nettipadam Road, Ernakulam. On 30.1.2021, the police got

information that the selling of narcotic drugs is going on in the above

apartment. The information was recorded in the C.D by the officer

concerned and proceeded to the place after complying with other

formalities. When the police party reached the apartment, the 1st

accused opened the door. It was found that the 2nd and 3rd accused

were also present in the apartment. After performing the legal

formalities, the body of the petitioner and the other accused were

searched. The apartment was also searched. It is the prosecution

case that 44.56 gms of MDMA, 1286.51 gms of Hashish oil, and 340

gms of Ganja were seized. It is also the case of the prosecution that

the 2nd accused was found in possession of 1.93 gms of Hashish oil

and the 3rd accused was found in possession of 1.88 gms of Hashish

oil. Hence, it is alleged that the accused committed the offence. It is

the admitted case of the prosecution and the accused that the final

report is filed before the jurisdictional court without the analyst report

of the contraband articles seized. It is also an admitted fact that the

statutory period of 180 days for completing the investigation is also

over. The petitioner was arrested on 30.1.2021 and he was produced

before the court concerned on 31.1. 2021. Admittedly, the final report

without the analyst report was submitted before the court concerned

within 180 days. It is also an admitted case that the Hashish oil and

the MDMA seized from the possession of the accused are commercial

quantities as per the NDPS Act. According to the petitioner, he is

entitled to default bail because an incomplete charge sheet is

submitted.

3. Heard the counsel for the petitioner Advocate Smt.Anitha

Mathai Muthirenthy and the Additional Director General of Prosecution

Sri.Gracious Kuriakose.

4. The counsel for the petitioner raised several contentions. The

counsel submitted that there was no seizure from the body of the

petitioner. The counsel submitted that simply because some

contraband articles are seized from the apartment in which the

petitioner was found, the petitioner is not responsible for the same.

The counsel also submitted that there is no criminal antecedents to

the petitioner. It is also the case of the petitioner that there is no

conscious possession of the contraband article seized from the

apartment as far as the petitioner is concerned. It is also contended

by the counsel that the prosecution submitted a final report without

an analyst report. According to the petitioner, in NDPS cases, without

analyst report, the prosecution cannot succeed. The counsel

submitted that the final report submitted by the investigating officer is

without the analyst report and therefore, it is an incomplete final

report. The counsel submitted that the incomplete final report is filed

to defeat the right of the petitioner to get bail u/s.167(2) Cr.P.C.

Therefore, the counsel submitted that the petitioner is entitled bail

because there is an incomplete final report filed before the court just

to get over the provision under Section 167(2) Cr.P.C. Hence, the

counsel submitted that the petitioner is entitled to default bail. The

counsel also relied on the judgment of the apex court in Rakesh

Kumar Paul v State of Assam (2017 (4) KHC 470) and the

judgment of the apex court in Om Prakash @ Baba v State of

Rajasthan (2009 KHC 5198). The counsel also relied an unreported

judgment of this court dated 12.8.2021 in B.A.No.4910 of 2021.

Another decision relied is the judgment of the Karnataka High Court in

Inspector of Customs, Headquarters Preventive Unit,

Bangalore v Daphira Wallang (2010 KHC 7257).

5. The Additional Director General of Prosecution (for short the

ADGP) opposed the bail application. The ADGP submitted that the

petitioner took the apartment on rent and the contraband articles

were seized from the apartment. The ADGP also submitted that

commercial quantities of Hashish oil and MDMA are seized from the

apartment. It is also submitted that a weighing machine and packets

to pack the contraband articles were also seized from the apartment.

Therefore, the petitioner is primarily responsible for the same and the

petitioner was in conscious possession of the contraband article. The

ADGP also submitted that the petitioner is a resident of Kasaragod

and he came to Ernakulam for the illegal NDPS business. Therefore,

the ADGP submitted that there is ample evidence against the

petitioner. The ADGP conceded that the analyst report is not

submitted along with the final report. But the ADGP submitted that

Hashish oil can be identified by an expert even by sight. The ADGP

submitted that the detecting officer identified with the help of the

Excise Inspector present at the spot that the contraband is Hashish oil

and MDMA. The purpose of the analyst report is only to corroborate

the evidence of these witnesses. The investigating officer has already

taken steps to send the sample for expert opinion. In such

circumstances, simply because the analyst report is not received and

before receiving the same the final report is filed, the petitioner is not

entitled statutory bail u/s.167(2) Cr.P.C. The ADGP also submitted

that a commercial quantity of Hashish oil and MDMA is seized from

the apartment. There are only four labs in Kerala to analyse these

contraband articles. Because of the workload in these laboratories,

the analyst report is not obtained. It is also submitted that because of

the pandemic situation, there was no sufficient staff in the

laboratories and therefore, the lab authorities were not able to

complete the analysis in time. The definite case of the ADGP is that

the petitioner cannot take advantage of the above situation. The

ADGP submitted that, since commercial quantities of MDMA and

Hashish oil are seized from the petitioner, the petitioner may not be

released on bail at this stage.

6. I considered the contentions of the petitioner and the ADGP.

The first contention of the petitioner is that he is not responsible for

the seizure of the contraband article from the apartment and there is

no contraband seized from the physical possession of the petitioner.

This can not be accepted while considering this bail application. The

prosecution case is that the petitioner took this apartment for rent.

When the detecting officers searched the apartment, the petitioner

was present. According to the detecting officers, commercial

quantities of MDMA and Hashish oil are seized from the apartment

which is taken on rent by the petitioner. In such circumstances,

simply because there is no seizure from the body of the petitioner, he

cannot escape from the liability at this stage. The burden is on the

petitioner to establish that he was not in conscious possession of the

contraband articles. While considering a bail application u/s.439

Cr.P.C, this court cannot decide the same. The petitioner is free to

raise all those contentions at the stage of trial and I do not want to

make any further observation about the same at this stage.

7. The main contention of the petitioner is that the petitioner is

entitled statutory bail because there is no complete final report filed

before the court concerned within the statutory period prescribed

u/s.36A(4) of the NDPS Act. It is an admitted fact that the final report

is filed. It is also an admitted fact that the final report is filed without

the analyst report and even now it is not received. It is also an

admitted fact that the statutory period for completing the

investigation is over as of today. In such circumstances, whether the

petitioner is entitled to default bail u/s.167(2) Cr.P.C is the point to

be decided. For deciding this issue, it will be better to extract Section

167 Cr.P.C.

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 well- founded, 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 not 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 the custody of

the police, beyond the period of 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.

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 woman under eighteen years of

age, the detention shall be authorised to be in the custody of a

remand home or recognized social institution.

(2A) Notwithstanding anything contained in sub- section (1) or

sub- section (2), the officer in charge of the police station or the

police officer making the investigation, if he is not below the rank

of a sub- inspector, may, where a Judicial Magistrate is not

available, transmit to the nearest Executive Magistrate, on whom

the powers of a Judicial Magistrate or Metropolitan Magistrate

have been conferred, a copy of the entry in the diary hereinafter

prescribed relating to the case, and shall, at the same time,

forward the accused to such Executive Magistrate, and thereupon

such Executive Magistrate, may, for reasons to be recorded in

writing, authorise the detention of the accused person in such

custody as he may think fit for a term not exceeding seven days

in the aggregate; and, on the expiry of the period of detention so

authorised, the accused person shall be released on bail except

where an order for further detention of the accused person has

been made by a Magistrate competent to make such order; and,

where an order for such further detention is made, the period

during which the accused person was detained in custody under

the orders made by an Executive Magistrate under this subsection,

shall be taken into account in computing the period

specified in paragraph (a) of the proviso to sub-section(2);

Provided that before the expiry of the period aforesaid, the

Executive Magistrate shall transmit to the nearest Judicial

Magistrate the records of the case together with a copy of the

entries in the diary relating to the case which was transmitted

to him by the officer in charge of the police station or the police

officer making the investigation, as the case may be.

(3) A Magistrate authorising under this section detention in the

custody of the police shall record his reasons for so doing.

(4) Any Magistrate other than the Chief Judicial Magistrate

making such order shall forward a copy of his order, with his

reasons for making it, to the Chief Judicial Magistrate.

(5) If in any case triable by a Magistrate as a summons-case,

the investigation is not concluded within a period of six months

from the date on which the accused was arrested, the

Magistrate shall make an order stopping further investigation

into the offence unless the officer making the investigation

satisfies the Magistrate that for special reasons and in the

interests of justice the continuation of the investigation beyond

the period of six months is necessary.

(6) Where any order stopping further investigation into an

offence has been made under sub-section (5), the Sessions

Judge may, if he is satisfied, on an application made to him or

otherwise, that further investigation into the offence ought to

be made, vacate the order made under sub-section (5) and

direct further investigation to be made into the offence subject

to such directions with regard to bail and other matters as he

may specify.

8. Section 167(1) Cr.P.C says that whenever any person is

arrested and detained in custody, and it appears that the investigation

cannot be completed within the period of 24 hours fixed by Section

57, and there are grounds for believing that the accusation or

information is well founded, 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 and shall at the same

time forward the accused to such Magistrate.

9. Section 167(2) proviso says that the Magistrate may authorize

the detention of the accused persons otherwise than in the custody of

the police beyond the period of 15 days if he is satisfied that adequate

ground exist for doing so, but no Magistrate shall authorize the

detention of the person in custody under this paragraph for a total

period exceeding 90 days where the investigation relates to an

offence punishable with death, imprisonment for life or imprisonment

for a term of not less than 10 years. As per Section 36A(4) of the

NDPS Act, the investigation, in this case, is to be completed within

180 days. If the same is not completed and the final report is not

submitted, the petitioner is entitled default bail.

10. Therefore, the point to be decided is whether the

investigation is completed or not within the period mentioned. The

investigation is defined in Section 2(h) of Cr.P.C. Section 2(h) says

under the Code for the collection of evidence. In this case, the

investigating officer has already taken proceedings to get the analyst

report by submitting requisition before the court concerned and it is

already reached the laboratory. Therefore, it cannot be said that

simply because the analyst report is not received from the laboratory,

the investigation is not complete. Therefore, if the investigating officer reported that the requisition for getting the analyst report is already submitted before the authority concerned, and the lab report is awaited, it cannot be said that the investigation is incomplete. But if the investigating officer is mainly relying upon a lab report to prove his case, and even in such a situation, a final report is filed without the report, it cannot be said that it is a final report as contemplated under law. Section 173 of the Criminal Procedure Code says about the submission of the final report. Section 173 Cr.P.C says that, after the conclusion of the investigation, the officer in charge of the police station shall forward the report in the form prescribed with the details mentioned therein. If the investigating officer after the investigation concluded that the offence alleged against the petitioner is maintainable based on the documents submitted before the Court, it can be treated as a complete report u/s.173 Cr.P.C. In such a situation, the investigating officer can submit before the Court that the analyst report is not received and that is a supplementary evidence or corroborative evidence to prove the charge sheet. In such circumstances, it cannot be said that the final report submitted before the court concerned is a defective final report. But in cases where the prosecution cannot prove a case without the aid of the analyst report and if a final report is filed in such cases without the analyst report, it can only be treated as an incomplete final report and in such situation, it cannot be said that the petitioner is not entitled default bail at that stage. Therefore, the entitlement of default bail u/s.167 Cr.P.C is to be decided based on the facts of each case. If the prosecution is relying the analyst report as a corroborative piece of evidence, it cannot be treated that if the final report is submitted without analyst report, that is an incomplete report. It cannot be said in such a situation that the investigation is not complete especially because Section 2(h) of the Cr.P.C states that the investigation includes all the proceedings under the court for the collection of evidence. If the investigating officer already completed the proceedings to get an analyst report by submitting appropriate

requisition before the court and the court concerned forwarded the

same to the laboratory, it cannot be said that simply because the

analyst report is not produced, the investigation is not completed.