Anita vs State Of Punjab on 16 February, 2024

Punjab-Haryana High Court

Anita vs State Of Punjab on 16 February, 2024

Author: Manjari Nehru Kaul

Bench: Manjari Nehru Kaul

                                                    Neutral Citation No:=2024:PHHC:022881




           IN THE HIGH COURT OF PUNJAB & HARYANA
                       AT CHANDIGARH
242

                               2024:PHHC:022881
1.                             CRR-2639-2023 (O&M)
                               Date of decision: February 16, 2024

ANITA
                                                                  .....Petitioner
                                   Versus

STATE OF PUNJAB
                                                                .....Respondent

2.                             CRR-2644-2023 (O&M)

MARJINA
                                                                  .....Petitioner
                                   Versus

STATE OF PUNJAB
                                                                .....Respondent


CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL

Present:    Mr. Prabhjot Singh Walia, Advocate
            for the petitioner.

            Mr. Navdeep Singh, Deputy Advocate General, Punjab.


MANJARI NEHRU KAUL, J.

1. This order shall dispose of the above-mentioned petitions as

they arise out of same FIR i.e. FIR No.46 dated 03.04.2023 under Sections

20,61,85 of the Narcotic Drugs and Psychotropic Substances Act, 1985,

registered at Police Station Shambu, District Patiala. For the sake of

convenience, the facts are being taken from CRR-2639-2023. The

petitioner has filed the instant revision petition under Section 401 of the

Code of Criminal Procedure, 1973 for seeking the grant of default bail

under Section 167(2) read with Section 482 of the Cr.P.C. in case FIR

mentioned above.

2. Learned counsel for the petitioner submits that in the instant

case, the petitioners were arrested on 03.04.2023. Thereafter, though the

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challan was presented before the expiry of the statutory period of 180

days, i.e. on 28.06.2023, however, it was presented without the report of

the FSL. Though later, the report was received, but it was still not

annexed or presented before the learned trial Court even after the expiry

of 180 days. The investigation, thus, in the instant case remained

incomplete, for which the petitioner stood entitled to the grant of default

bail under Section 167(2) of the Cr.P.C. Resultantly, the petitioner

moved an application for grant of default bail on 19.10.2023 before the

learned trial Court. The learned trial Court erroneously dismissed his

prayer for being released on default bail vide the impugned order. It has

been further submitted that it was also a matter of record that no

report/application under Section 36A(4) of the NDPS Act was ever filed

by the Public Prosecutor before the learned trial Court for extension of

time to complete investigation. Therefore, the supplementary challan

which was presented along with the FSL Report on 26.10.2023 i.e.

much after the petitioner had already moved an application for being

enlarged on default bail, could not in any manner extinguish his right

for being enlarged on default bail.

3. Per contra, learned State counsel, while opposing the

prayer and submissions made by the counsel opposite, has submitted

that the investigation in the instant case stood completed before the

expiry of statutory period of 180 days and challan had also been

presented, thus, no right, much less under Section 167(2) of the Cr.P.C.,

stood accrued in favour of the petitioner. It was further submitted that

the FSL Report had also been received on 18.07.2023. However, on a

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pointed query put to the learned State counsel as to whether the FSL

Report after being received by the investigating agency on 18.07.2023,

had been annexed with the challan or presented before the learned trial

Court prior to the petitioner moving an application under Section 167(2)

of the Cr.P.C. or furthermore, whether the learned Public Prosecutor had

moved any application/report for seeking extension of time as mandated

under Section 36A(4) of the NDPS Act, learned State counsel, on

instructions, fairly replied in the negative, and that the FSL report had

been annexed only with the supplementary challan, which was

presented on 26.10.2023.

4. I have heard learned counsel for the parties and perused the

relevant material placed on record.

5. It is trite to assert that should an investigation remain

incomplete beyond the prescribed statutory period of 180 days, a clear

and unequivocal right under Section 167(2) of the Cr.P.C. would accrue

in favour of an accused to be enlarged on default bail. Specifically

concerning cases falling under the purview of the NDPS Act, the

completion of an investigation hinges upon the report of the Chemical

Examiner regarding the identity and nature of the substance(s) seized

from an accused. Furthermore, reliance being solely placed on the

sensory observations (such as smell or sight) by investigating agency

cannot serve as conclusive evidence with respect to the involvement of

an accused in offences under the NDPS Act. The absence of the FSL

Report, which is pivotal in establishing the link of the accused to an

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offence under the NDPS Act, would impede the Court from proceeding

further or taking cognizance of the matter.

6. It would be relevant to refer to the observations by the

Hon’ble Division Bench of this Court in Ajit Singh @ Jeeta and

another versus State of Punjab, CRR No.4659 of 2015, wherein this

Court categorically held that a challan presented in cases under the

NDPS Act, without it being accompanied with the FSL Report, would

constitute an incomplete challan.

7. In the present case, concededly, the initial challan was

presented on 28.06.2023, before the expiry of the statutory period of

180 days, however, it was sans the requisite FSL Report. Subsequently,

although a supplementary challan along with the FSL Report was

indeed submitted, however, it has remained uncontested that they were

presented, well after the petitioner had already invoked the provisions of

default bail under Section 167(2) of the Cr.P.C. Furthermore, it has also

not been refuted by the learned State counsel on instructions, that any

report/application as mandated under Section 36A(4) of the NDPS Act

seeking extension of time from the learned trial Court, had not been

moved by the learned Public Prosecutor.

8. In the light of the foregoing, it is indisputable that since the

investigation remained incomplete at the time when the petitioner

moved an application under Section 167(2) of the Cr.P.C. subsequent to

the expiry of the stipulated period of 180 days, the petitioner became

entitled to avail his indefeasible right to be released on default bail.

9. In the facts and circumstances as enumerated hereinabove,

this Court deems it fit to extend the extraordinary concession of default

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bail to the petitioner. Accordingly, the instant petition is allowed; the

petitioner be admitted to bail to the satisfaction of the trial Court/Duty

Magistrate concerned.

10. However, it is made clear that anything observed

hereinabove shall not be construed to be an expression of opinion on the

merits of the case.

11. Needless to add here, in case the petitioner is found

misusing the concession of bail, the State would be at liberty to

approach this Court to seek cancellation of bail to him.

12. Photocopy of this order be placed on the file of the

connected case.

February 16, 2024                             (MANJARI NEHRU KAUL)
Jaspreet Kaur                                       JUDGE

                Whether speaking/reasoned        :      Yes/No

                Whether reportable               :      Yes/No




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