Non-Filing of FSL report with Chargesheet, Not entitled for Bail u/s 162(2) CrPc– Delhi HC

Babu v. The State (GNCT of Delhi)

CITATION: BAIL APPLN. 2075/2020

DECIDED ON: 25.9.2020

The Honble Ms. Justice Mukta Gupta of the Division bench of Delhi High Court adjudged the case whose facts are that the petitioner is in custody in case under Section 21(B) of the NDPS Act registered at Delhi. The prosecution states that on 6th December, 2019, the petitioner was found to be in possession of 50 gms of Heroin and another 50 gms of Heroin was recovered from the co-accused.

The issue

Whether the petitioner is entitled to grant of bail under Section 167(2) CrPC for non-filing of the FSL report along with the charge sheet?

The main arguments of the learned council of the petitioner was the alleged recovery from the petitioner being of a quantity less than the commercial quantity, the maximum punishment which could be awarded to the petitioner was upto 10 years’ imprisonment besides fine and thus, the charge sheet was required to be filed within 60 days and the Special Judge had no jurisdiction to remand the petitioner without charge sheet after 4th February, 2020. The charge sheet was not filed till 4th February, 2020 and thus the learned council stated that he must be granted bail. The Council relied upon Ajit Singh/Jeeta and Anr. v. State of Punjab, Criminal Revision No. 4659 of 2015 (Division Bench, Punjab & Haryana High Court), and Gurpal Singh and Anr.v. State of Punjab, Crl.Revision 791/2016 (Punjab and Haryana High Court). The petitioner also seeked bail on merits.

The Division Bench of the Delhi High Court relied upon the decision of the Supreme Court in Tara Singh Vs. State ,(1951) 2 SCR 729 which did not relate to an offence punishable under NDPS Act. A distinction can clearly be drawn between the cases relating to offences under the Indian Penal Code and offences under NDPS Act, for that reason, the charge sheet filed without a FSL report.

It also stated that the FSL report in the said charge sheet only supplements the material already filed by the prosecution. This is in contradistinction to an offence punishable under NDPS Act where the possession of the contraband itself is an offence and if the prosecution in the charge sheet is not able to show that the alleged recovery from the accused was prohibited under the provisions of the NDPS Act, the basic ingredient of the offence would be missing, therefore, the cognizance on such a charge sheet would suffer from total non-application of mind and would be non-est. It is trite law that Court takes cognizance of the offence and not the offender.

The Division Bench of Delhi High Court relied upon Kishan Lal v. State thus stated that

“It is held that the petitioner is not entitled to grant of bail under Section 167(2) CrPC for non-filing of the FSL report along with the charge sheet.”(Para 18).

In the alternative petitioner also seeks bail on merits.

“Considering heroin was allegedly recovered from the petitioner and no procedural infirmity having been pointed out, this Court finds no ground to grant bail to the petitioner on merits as well.” (Para 20)

Petition was dismissed.

- Kamalini

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BAIL APPLN. 2075 of 2020

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