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Calcutta High Court (Appellete Side)
Ananta Barman vs The State Of West Bengal on 2 May, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
Criminal Miscellaneous Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
C.R.M (NDPS) 1617 of 2024
Ananta Barman
Vs.
The State of West Bengal
with
C.R.M (NDPS) 1811 of 2024
Samim Sk
Vs.
The State of West Bengal
with
C.R.M (NDPS) 1850 of 2024
Bachan Mandal
Vs.
The State of West Bengal
with
C.R.M (NDPS) 1893 of 2024
Roushan Kumar Yadav
Vs.
The State of West Bengal
For the Petitioner : Ms. Sompurna Chatterjee, Adv.
in CRM (NDPS) 1617 Mr. Apan Saha, Adv.
of 2024 Mr. Ishan Sen, Adv.
subha
karmakar
Digitally signed by
subha karmakar
Date: 2025.05.02
13:08:53 +05'30'
2
For the Petitioner : Mr. Apolok Basu, Adv.
in CRM (NDPS) 1811 Mr. Avinaba Patra, Adv.
of 2024 Mr. Nazir Ahmed, Adv.
Mr. Agnik Maulik, Adv.
For the Petitioner : Mr. Ayan Bhattacherjee, Sr. Adv.
in CRM (NDPS) 1850 Mr. Arup Kr. Bhoumick, Adv.
of 2024 Mr. Sharequl Haque, Adv.
Mr. Shounak Mondal, Adv.
For the Petitioner : Mr. Soumyajit Das Mahapatra, Adv.
in CRM (NDPS) 1893 Mr. Jisan Iqubal Hossain, Adv.
of 2024 Ms. Madhurai Sinha, Adv.
Mr. Ranabeer Halder, Adv.
For the State : Mr. Rudradipta Nandy, Ld. APP
in CRM (NDPS) 1617 Ms. Amita Gaur, Adv.
of 2024 Mr. Sayeed Khan, Adv.
Ms. Rituparna De Ghose, Adv.
For the State : Mr. A. Basu, Adv.
in CRM (NDPS) 1811 Mr. Raju Mondal, Adv.
of 2024 Ms. Rituparna De Ghose, Adv.
For the State : Mr. Rudradipta Nandy, Ld. APP
in CRM (NDPS) 1850 Mr. Anand Keshari, Adv.
of 2024 Ms. Afrin Begum, Adv.
Ms. Rituparna De Ghose, Adv.
For the State : Mr. Rudradipta Nandy, Ld. APP
in CRM (NDPS) 1893 Mr. Bibaswan Bhattacharya, Adv.
of 2024 Mr. Subhajit Chowdhury Adv.
Hearing Concluded on : March 26, 2025
Judgement on : May 02, 2025
DEBANGSU BASAK, J.:-
1.
Four applications for bail have been heard analogously
as the issues involved are similar. For the sake of
convenience, learned advocates appearing for the petitioner in
the respective bail applications, collated their contentions and
allowed learned Senior Advocate appearing for the petitioner
3
in CRM (NDPS) 1850 of 2024 to put forward the same to the
Court. In addition thereto, respective advocates for the
petitioners, also made their submissions. Again for the sake of
convenience, the contentions of the petitioners are noted as if
being made by learned Senior Advocate appearing for the
petitioner in CRM (NDPS) 1850 of 2024, particularly in view of
the fact that there are no inherent contradictions amongst the
petitioners with regard to their contentions.
2. Learned Senior Advocate appearing for the petitioner
has contended that, a police report without the Chemical
Examination Report of the contraband seized, is an
incomplete report and the detenu is entitled to statutory bail.
In support of such contention, he has referred to sections 169,
170 and 173 of the Criminal Procedure Code, 1973. He has
referred to 2004 Volume 7 Supreme Court Cases 768
(Gangadhar Janardan Mhatre vs. State of Maharashtra
and Others) and contended that it would be evident on a
combined reading of sections 169, 170 and 173 of the
Criminal Procedure Code that in cases where there is no
sufficient evidence, a closure report will be filed whereas in
cases where sufficient evidence is found, a positive report will
be filed.
4
3. Learned Senior Advocate appearing for the petitioner
has contended that, investigation includes all the proceedings
under the Criminal Procedure Code for the collection of
evidence conducted by a police officer. It ends with the
formation of the opinion as to whether the materials collected
has made out a case for trial as against the accused or not. He
has contended that, the purpose of an investigation is
augmentation of the evidence. He has relied upon All India
Reporter 1955 Supreme Court 196 (H.N. Rishbud & Anr.
vs State of Delhi). He has also relied upon 2003 volume 6
Supreme Court Cases 195 (Union of India vs Prakash P.
Hinduja & Anr.) in support of his contention that, the
formation of opinion by an investigating officer is made on the
basis of the materials collected. The manner and method of
conducting investigation is left entirely to the investigating
agency and that the Magistrate has no power to interfere with
the same.
4. Learned Senior Advocate appearing for the petitioner
has contended that, when the purpose of an investigation is to
collect evidence, non-collection of the Chemical Examination
Report signifies an inherent lacuna in the investigation.
5
5. Relying upon 2007 Volume 1 Supreme Court Cases
110 (M.C. Mehta (Taj Corridor Scam) vs Union of India &
Ors.) learned Senior Advocate appearing for the petitioner has
contended that, even a court of law cannot compel the
investigating agency to formulate a particular opinion.
6. Learned Senior Advocate appearing for the petitioner
has contended that, police report is complete where a case is
not dependant on further evidence and the trial can proceed
on the basis of the evidence and material placed on record
with the police report. In support of such contention, he has
relied upon 2024 Volume 6 SCR 86 (Sharif Ahmed and
Another v. State Of Uttar Pradesh and Another).
7. Learned Senior Advocate appearing for the petitioner
has referred to the Drug Law Enforcement Field Officer Hand
Book issued by the Narcotic Control Bureau, Ministry of Home
Affairs, Government of India and in particular to Chapter 7
thereof. He has also referred to the Sampling and Sealing as
appearing in such Hand Book as also, Chapter 19 thereof
relating to launching of prosecution filing of criminal
complaint/chargesheet. He has contended that, without an
appropriate chemical analysis report, it is difficult to come to
a conclusion that the contraband is a narcotic drug or a
6
psychotropic substance. He has pointed out that, mere smell
or visual appearance of an article is often misleading.
8. Referring to 2015 Volume 3 Supreme Court Cases
417 (Narendra Kumar Amin vs Central Bureau of
Investigation & Ors.) learned Senior Advocate appearing for
the petitioner has contended that, although, police report is
complete even in absence of appropriate document,
nonetheless, formation of opinion of the police must be on the
basis of sufficient materials. According to him, the absence of
the Chemical Examination Report, does not permit the police
to form an opinion that, the seized contraband is either a drug
or a narcotic substance. He has also referred to 1947 Volume
2 All ER 680 (Associated Provincial Picture Houses, Ltd.
vs Wednesbury Corporation) and contended that, a person
entrusted with a discretion must direct himself properly in
law.
9. Learned Senior Advocate appearing for the petitioner
has relied upon Chapter XXX of the Criminal Procedure Code
and contended that, such provisions are intrinsically linked to
Article 21 of the Constitution of India. He has contended that
the provisions under Section 167 of the Criminal Procedure
Code is absolute in nature and requires strict adherence. In
7
support of such contention, he has relied upon 2021 Volume
12 Supreme Court Cases 1 (S. Kasi vs. State).
10. Relying upon 2020 Volume 10 Supreme Court
Cases 616 (Bikramjit Singh Vs. State of Punjab) learned
Senior Advocate appearing for the petitioner has contended
that, the concept of statutory bail is now elevated to the status
of a fundamental right.
11. Relying upon 2015 Volume 4 Supreme Court Cases
609 (Sunil Bharti Mittal Vs. Central Bureau of
Investigation,) learned Senior Advocate appearing for the
petitioner has contended that, a police report is filed to enable
the Court to apply its mind as to whether cognizable offence
exists or not. He has contended that, in absence of a Chemical
Examination Report, opinion of the investigating officer,
regarding the contraband becomes an opinion based on
suspicion which is not permissible.
12. Learned Senior Advocate appearing for the petitioner
has relied upon 1992 Volume 4 Supreme Court Cases 272
(Aslam Babalal Desai vs State of Maharashtra) and 2017
Volume 15 Supreme Court Cases 67 (Rakesh Kumar Paul
vs State of Assam) and contended that, the Law Commission
in its 37th report on Criminal Procedure Code, 1889 and 31st
8
report on Criminal Procedure Code, 1898 took into
consideration the ratio of such decisions. He has contended
that, once a police report is filed, it is expected that a
proceeding will go to the next stage that is under Section 226
of the Criminal Procedure Code. He has contended that, since
a drug detection kit is no evidence, therefore, the hurdle of
Section 226 of the Criminal Procedure Code cannot be
crossed, therefore, the accused will be incarcerated for an
indefinite period, jeopardising his constitutional right of
compulsive bail under Article 21 of the Constitution of India.
13. Relying upon 2013 Volume 2 Supreme Court Cases
590 (Thana Singh vs Central Bureau of Narcotics) learned
Senior Advocate appearing for the petitioner has contended
that, absence of adequate number of forensic laboratories
does not permit a tailor made police report to be filed as a
device to cope with such situation. Such course of action,
according to him is a fraud on legislation as also on the
Constitution.
14. Relying upon All India Reporter 1964 SC 358 (State
of Uttar Pradesh vs. Singhara Singh & Ors.) learned
Senior Advocate appearing for the petitioner has contended
9
that, where a power is given to do a certain thing in a certain
way the thing must be done in that way or not at all.
15. Relying upon 1994 Volume 15 Supreme Court Cases
410 (Sanjay Dutt V. State Through CBI, Bombay) learned
Senior Advocate appearing for the petitioner has contended
that, penal statute is required to be interpreted strictly.
16. Learned Senior Advocate appearing for the petitioners
has contended that, filing of chargesheet, without the forensic
Chemical Examination Report is colourable exercise of power
which is not permissible. In support of such contention he has
relied upon All India Reporer 1987 SC 579 (Dr. D.C.
Wadhwa & Ors. Vs. State of Bihar).
17. Learned Senior Advocate appearing for the petitioner
has contended that, Sections 167(2), 170, 173(2) and 190(1)(b)
of the Criminal Procedure Code are held to be mandatory and
therefore, total compliance thereof is required. According to
him, filing of a document in the midst of an investigation
without collecting evidence thereof just to frustrate the right of
a citizen cannot be said to be total compliance of the
provisions under Section 170 read with Section 170(2) of the
Criminal Procedure Code and therefore, the same is bad. He
has relied upon 2011 Volume 1 Supreme Court Cases 609
10
(Vijaysinh Chandubha Jadega Vs. State of Gujarat) in this
regard.
18. Learned Senior Advocate appearing for the petitioner
has contended that, where, there are conflicting opinions of
Co-ordinate Bench of the same Court, with respect to the law
in question, a reference to a larger Bench ought to be made to
give a quietus as to the same. In support of such contention
he has relied upon 2017 SCC OnLine Cal 759 (Mrinal Kanti
Sil Vs. Smt. Sampa Kabiraj).
19. Relying upon AIR 1975 SC 43 (Shri Umed vs. Raj
Singh & Ors.) learned Senior Advocate appearing for the
petitioner has contended that, it is always open to a Court to
change its perspective and revisit an issue if and when
circumstances of a case so warrant.
20. Learned additional public prosecutor has referred to
2022 SCC OnLine Cal 534 (Debashish Tarafder vs. State
of West Bengal) and contended that, infraction if any of
Section 52A of the NDPS Act, 1985 should be left to be
decided at the trial and ought not to be decided at the stage of
consideration of an application for bail.
21. Learned additional public prosecutor has relied upon
2022 SCC OnLine Cal 331 (State vs. Ebrahim Hossain and
11
Another), 2022 SCC OnLine Cal 623 (Raju Mandal vs.
State of West Bengal) in support of his contention that,
chargesheet filed sans the Chemical Examination Report will
not entitle the accused to default bail.
22. Learned public prosecutor has contended that, the
issue as to whether, a chargesheet sans the Chemical
Examination Report will entitle the accused to a default bail
did not fall for consideration in 2023 SCC OnLine Cal 313
(Subhas Yadav vs. State of West Bengal). He has drawn the
attention of the Court to the issues that were framed by the
full bench for decision in Subhas Yadav (supra) in this
regard.
23. Learned public prosecutor has contended that, the
coordinate bench of Rakesh Sha (supra) and Idul Mia
(supra) were not made aware of the decisions rendered in
Ebrahim Hossain and Another (supra), Raju Mandal
(supra) and Debashish Tarafder (supra) which are binding
precedents on the subsequent coordinate Benches.
24. Learned additional public prosecutor has relied upon
2005 Volume 2 Supreme Court Cases 673 (Central Board
of Dawoodi Bohra Community and another Vs. State of
Maharashtra and another) for the proposition that, law laid
12
down by a coordinate bench is binding on any subsequent
bench of the same strength.
25. Learned additional public prosecutor has contended
that, chargesheet submitted without the Chemical
Examination Report does not entitle the accused to bail
simplicitor on such fact. He has relied upon 2002 Volume 5
Supreme Court Cases 82 (Central Bureau of Investigation
vs. R S Pai and another) in support of the contention that,
additional evidence gathered during investigation can be
produced by the police officer even after submission of the
chargesheet. He has contended that, the word “shall” used in
sub-section (5) for requiring the police officers to forward to
the Magistrate “all documents” is directory and not
mandatory.
26. Learned additional public prosecutor has relied upon
2021 SCC OnLine Bom 2955 (Manas Krishna T.K. vs.
State, the Police Inspector/Officer in Charge and Another)
and contended that, investigation can be said to be complete
within the period prescribed under Section 167 (2) of the
Criminal Procedure Code when a police report under Section
173 (2) is filed before the Special Court without any Chemical
Examination Report.
13
27. Learned additional public prosecutor has relied upon
2023 SCC OnLine SC 502 (Ritu Chhabaria versus Union of
India and Others) for the proposition that, a chargesheet can
be filed piecemeal without completing the investigation and
that, filing of such chargesheet will extinguish the right of an
accused for grant of the default bail. He has relied upon 2023
SCC OnLine SC 751 (Directorate of Enforcement vs.
Manpreet Singh Talwar) to contend that, it will not prevent
the High Court from considering an application for grant of
default bail under Section 167 of the Criminal Procedure Code
independent of and without relying on the judgement dated
April 26, 2023.
28. Learned additional public prosecutor has relied upon
2024 Volume 3 Supreme Court Cases 734 (Central Bureau
of Investigation Vs. Kapil Wadhawan and another) for the
contention that, filing of chargesheet within the statutory
period is sufficient compliance with the provisions of section
167 (2) (a) (ii) of the Criminal Procedure Code.
29. Learned additional public prosecutor has relied upon
2024 SCC OnLine Gau 1916 (Jitul Ali vs. Union of India)
in support of the contention that, Guwahati High Court
14
negated the contention that non-submission of the Chemical
Examination Report entitled the accused to default bail.
30. Learned additional public prosecutor has referred to
the order dated December 6, 2024 passed by the Supreme
Court in Special Leave to Appeal (Crl) No. 16698 of 2024
arising out of Idul Mia (supra) and contended that, the
Supreme Court did not interfere with the order granting
default bail in the peculiar facts and circumstances of that
case. However, State had been permitted to render assistance
in the pending reference.
31. Learned additional public prosecutor has referred to
the order dated July 18, 2024 passed in Special Leave to
Appeal (Crl.) Nos. 8164-8166 of 2021 and contended that, the
reference is still pending.
32. The issues that have fallen for consideration in the
present proceedings are: –
(i) does a chargesheet without the Chemical
Examination Report make the investigation
incomplete?
(ii) does a chargesheet without the Chemical
Examination Report entitle the accused to default
bail under the Act of 1985?
15
(iii) should this Court refer the two above noted
issues to a larger bench?
(iv) to what relief for reliefs are the parties entitled
to?
33. In all the 4 police cases before us, police had filed
chargesheets before the jurisdictional Courts without the
Chemical Examination Report.
34. A Co-ordinate Bench in Ebrahim Hossain (supra) has
considered the issue as to whether chargesheet without the
Chemical Examination Report submitted within the statutory
period can be considered as a chargesheet within the meaning
of section 173 of the Criminal Procedure Code or not.
Ebrahim Hossain (supra) has considered such issue in the
context of an application for cancellation of bail granted on
the point that, chargesheet was unaccompanied with the
Chemical Examination Report and therefore, the accused was
entitled to default bail. The Coordinate Bench in Ebrahim
Hossain (supra) has held that, chargesheet submitted
without the Chemical Examination Report, could be
construed as a report under section 173 (2) of the Criminal
Procedure Code, and therefore the accused was not entitled to
default bail.
16
35. Debashish Tarafder (supra) has considered the issue
as to whether, infraction if any, of section 52A (4) of the Act of
1985 entitles the accused to bail on not. It has relied upon
various authorities of the Supreme Court as also of the
coordinate bench of this court and held that, the infraction if
there be any, of section 52A (4) of the Act of 1985 has to be
evaluated at the time of trial and not otherwise. It has also
noted that, the procedure prescribed under section 52A of the
Act of 1985 is a post seizure exercise and that failure to
comply with such procedure does not affect the legality of the
seizure.
36. Raju Mandal (supra) has considered the issue of the
entitlement of an accused to default bail under Section 167 (2)
of the Criminal Procedure Code on the police failing to submit
a chargesheet with the Chemical Examination Report within
180 days from the date of arrest of the accused. It has
considered various authorities of the Supreme Court as also of
the other High Courts. It has also considered Section 36A of
the Act of 1985 including Section 36A (4) thereof. It has noted
that, filing of chargesheet or report under section 173 of the
Criminal Procedure Code and the taking of cognizance of an
offence under Section 190 thereof are two different distinct
17
and separate acts. While, a chargesheet or report under
Section 173 of the Criminal Procedure Code is filed by the
investigating agency, the cognizance of the offence has to be
taken by the Court under section 190 thereof. It has negated
the contention of the accused that it was entitled to default
bail in view of the Chemical Examination Report not being
filed along with the chargesheet. It has observed as follows: –
“13. Section 190 of the Criminal Procedure Code has
provided for the mechanism by which the Cognizance of an
offence is taken by the Magistrate. Section 36A(1)(d) has
empowered the Special Court, upon perusal of the police
report of the facts constituting the offence under the Act of
1985 or upon complaint being made by the officer of the
Central Government or State Government authorized in his
behalf, take cognizance of that offence without the accused
being committed to it for trial. Cognizance is understood to
mean that the Court has applied its mind as to whether there
is sufficient cause or ground for it to do so. Taking cognizance
by the Court has also been understood to mean discharge of a
judicial function. While taking cognizance, the Court has to be
satisfied that there is sufficient ground for proceeding against
the accused for the offence alleged to be committed. The Court
does not have to be satisfied that the evidence placed at that
stage, would be sufficient to convict the accused. Sufficiency
of the evidence has to be considered at the trial.
14. Section 36A(4) does not stipulate that the Special
Court has to take cognizance of the offence within the
prescribed period of 180 days. The Act of 1985 has not
prescribed any time period for the taking of cognizance.
18
Rather, it has stipulated that the report under Section 173 of
the Criminal Procedure Code has to be submitted by the police
within 180 days from the date of the arrest of the accused or
within the extended period which is extendable for the
maximum period of one year. Section 173(2) of the Criminal
Procedure Code has not stipulated that, the police report must
be accompanied by Chemical Examination Report with regard
to the contraband seized. Absence of the Chemical
Examination Report in the police report submitted under
Section 173 of the Criminal Procedure Code does not vitiate
the police report by itself. A police report submitted under
Section 173 of the Criminal Procedure Code without the
Chemical Examination Report nonetheless is a police report
within the meaning of Section 173 of the Criminal Procedure
Code. Whether or not the Court, takes cognizance on the basis
of a police report without the Chemical Examination Report
reflects on the decision of taking cognizance and not the filing
of the police report under Section 173 of the Criminal
Procedure Code.”
37. Special Bench in Subhas Yadav (supra) has
considered 5 issues as tabulated in paragraphs 1 and 2
thereof which are as follows: –
“1. The reference was made on the following issue:–
“Whether an accused upon expiry of period of detention
pending investigation as prescribed under Section 36A(4) of
the NDPS Act is to be released automatically on statutory bail
without a prayer made by him availing such right and
expressing his willingness to furnish bail?
2. During hearing the parties proposed additional
issues as follows:–
19
• Whether retrospective extension of the period of
investigation by the learned Special Court is permissible on a
juxtaposed reading of section 36A(4) of the NDPS Act vis-à-vis
Article 21 of the Constitution of India?
• Whether at the time of passing of the order extending
the period of investigation the learned Special Court would
apply the parameters of observing the “progress of
investigation” and “the specific reasons of detention” prior to
the passing of such order?
• Whether in the interregnum period between the
conclusion of the period of investigation, and an order
retrospectively extending the period of investigation the
petitioner would be liable to be released on statutory bail,
especially on a harmonious interpretation of section 36A(4) of
the NDPS Act and section 167 of the Cr. P.C.?
• Whether the mere filing of an application for extension
in the absence of an order extending the period of
investigation would render the application for statutory bail
filed by the petitioner to be infructuous?”
38. Subhas Yadav (supra) has answered such reference
as follows: –
“31. In light of the aforesaid discussion, the issues are
answered as follows:–
1. Right of an accused to statutory bail upon expiry of
the period of detention prescribed under
section 36A(4) of NDPS Act is an inchoate one till he avails of
his right by seeking statutory bail either by way of an
application or even orally. Hence, he cannot be released
automatically on statutory bail on the mere expiry of 180
days even if the prosecutor has failed to submit report
20seeking extension of detention in terms of the proviso to
section 36A(4) of the Act before expiry of the said period;
2. Order extending the period of detention under
proviso to section 36A(4) of NDPS Act on a report of the Public
Prosecutor submitted after expiry of 180 days but prior to the
accused availing of his right does not envisage retrospective
operation but the total period of detention under the aforesaid
provision cannot exceed one year in the whole;
3. As per Para 25.3 of M. Ravindran (supra) the right to
statutory bail stands extinguished once the report of the
Public Prosecutor seeking extension is filed. Hence, remand of
the accused till the prayer of the prosecutor is disposed of is
traceable to section 167(2) Cr. P.C. read with section 36A(4) of
the NDPS Act. In the event, the application for extension is
dismissed or an order extending detention is set aside by a
superior court right to statutory bail revives in favour of the
accused;
4. Upon expiry of 180 days of detention, Special Court
as a cautionary measure ought to inform the accused
(particularly if he is from an underprivileged section of society
and is unrepresented by a counsel) of his right to statutory
bail. However, failure to intimate the accused of his right by
itself would not entitle him to statutory bail unless he avails
of such relief;
5. Prayer for extension of period of detention must be on
the basis of a report of Public Prosecutor which must record
progress of investigation and spell out specific reasons to
justify further detention beyond 180 days pending
investigation;
6. Special Court on the basis of the report of Public
Prosecutor and materials in support of such plea must be
satisfied of the twin requirements, i.e., (a) there is appreciable
21progress in the investigation and (b) there are
specific/compelling reasons to justify further detention
pending investigation. Each case has to be decided on its own
merits. For example, failure to complete investigation solely on
the score of non-submission of FSL report of the samples
drawn from the contraband is an institutional shortcoming.
This by itself may not justify further detention pending
completion of investigation. But if the aforesaid fact situation
is coupled with compelling circumstances like complexities in
investigation in an organized crime racket or inter-
state/trans-border trafficking, criminal antecedents of the
accused giving rise to possibility of recidivism, abscondence of
co-accused, etc., constituting ‘specific reasons’ justifying
further detention, the Court may be inclined to extend the
period of detention and deny liberty;
7. Prayer for extension of period of detention must be
decided at the earliest without undue delay preferably within
7 days from making such application. Reasons for
adjournment must be specifically stated;
8. No written notice or copy of report of Public
Prosecutor requires to be served upon the accused or his
counsel but the accused or his counsel must be present
personally or through video linkage at the time of
consideration of the application. Accused and/or his counsel
must be aware of such consideration and may raise objection,
if any, with regard to compliance of mandatory requirements
of law.”
39. It has been fairly conceded on behalf of the petitioners
appearing before us that, the issue as to whether, a
chargesheet sans the Chemical Examination Report would
entitle the accused to a default bail or not did not fall for
22
consideration before the Special Bench in Subhas Yadav
(supra). Apart from the concession made at the Bar, we have
noted the points of reference that Subhas Yadav (supra)
considered and the conclusions arrived at with regard to such
points of reference. It cannot be said that, given the points of
reference noted by the Special Bench in paragraphs 1 and 2 of
Subhas Yadav (supra), it has considered and decided on any
of the issues that have fallen for consideration before us.
Therefore, Subhas Yadav (supra) cannot be applied to decide
any of the issues that have fallen for consideration before us.
40. A coordinate bench in Rakesh Sha (supra) has
granted bail to an accused on the ground that, the
chargesheet filed was not accompanied with the Chemical
Examination Report and therefore, the prosecution failed to
comply with the statutory mandate of proviso to section 36A
(4) of the Act of 1985 as well as the procedural infirmity of a
chargesheet sans the Chemical Examination Report. It has
relied on Subhas Yadav (supra) and a decision of the
Bombay High Court reported that 2021 SCC OnLine Bom
3051 (Sagar Parshuram Joshi).
41. Significantly, attention of the coordinate bench
rendering Rakesh Sha (supra) was not drawn to the binding
23
precedents of Ebrahim Hossain (supra), Debashish
Tarafder (supra) and Raju Mandal (supra). Subhas Yadav
(supra) did not decide the issue which fell for consideration in
Rakesh Sha (supra). The view of the Bombay High Court
which was referred to and relied upon in Rakesh Sha (supra)
was overruled by the Bombay High Court in Manas Krishna
TK (supra) much prior in point of time. Rakesh Sha (supra)
was decided on August 25, 2023 while Manas Krishna TK
(supra) was decided on September 17, 2021.
42. Another coordinate bench has followed Rakesh Sha
(supra) in Idul Mia (supra). Again, neither the binding
precedents of Ebrahim Hossain (supra), Debashish
Tarafder (supra) and Raju Mandal (supra) nor the
persuasive precedent of Manas Krishna TK (supra) were
drawn to the attention of the coordinate bench rendering Idul
Mia (supra).
43. State had preferred a Special Leave Petition directed
against Idul Mia (supra). Such Special Leave Petition being
Special Leave to Appeal (CRL) No. 16698 of 2024 was disposed
of by an order dated December 6, 2024 after noting that, the
issue of grant of default bail in a case where chargesheet has
been filed without the Chemical Examination Report in
24
relation to the offence committed under the Act of 1985 is
pending consideration before a three-judge bench of the
Supreme Court. Supreme Court in such Special Leave Petition
has however requested the learned State Counsel to render
assistance on such question before the three-judge bench. In
the peculiar facts and circumstances of Idul Mia (supra) the
Supreme Court has refused to interfere with the order
granting bail to the accused therein.
44. The issue therefore, whether, an accused is entitled to
grant of default bail in a case where chargesheet was filed
without the Chemical Examination Report in relation to an
offence committed under the Act of 1985 was not conclusively
pronounced upon by the Supreme Court in the Special Leave
Petition carried against Idul Mia (supra).
45. Gangadhar Janardan Mhatre (supra) has noticed
that, when a report is submitted by the police to the
Magistrate under Section 173(2)(1) of the Criminal Procedure
Code, several situations arise. It has held as follows :-
“9. When a report forwarded by the police to the Magistrate
under Section 173(2)(i) is placed before him several situations
arise. The report may conclude that an offence appears to have
been committed by a particular person or persons and in such
a case, the Magistrate may either (1) accept the report and take
25cognizance of the offence and issue process, or (2) may
disagree with the report and drop the proceeding, or (3) may
direct further investigation under Section 156(3) and require the
police to make a further report. The report may on the other
hand state that according to the police, no offence appears to
have been committed. When such a report is placed before the
Magistrate he has again option of adopting one of the three
courses open i.e. (1) he may accept the report and drop the
proceeding; or (2) he may disagree with the report and take the
view that there is sufficient ground for further proceeding, take
cognizance of the offence and issue process; or (3) he may
direct further investigation to be made by the police under
Section 156(3). The position is, therefore, now well settled that
upon receipt of a police report under Section 173(2) a
Magistrate is entitled to take cognizance of an offence under
Section 190(1)(b) of the Code even if the police report is to the
effect that no case is made out against the accused. The
Magistrate can take into account the statements of the
witnesses examined by the police during the investigation and
take cognizance of the offence complained of and order the
issue of process to the accused. Section 190(1)(b) does not lay
down that a Magistrate can take cognizance of an offence only
if the investigating officer gives an opinion that the
investigation has made out a case against the accused. The
Magistrate can ignore the conclusion arrived at by the
investigating officer and independently apply his mind to the
facts emerging from the investigation and take cognizance of
the case, if he thinks fit, exercise his powers under Section
190(1)(b) and direct the issue of process to the accused. The
Magistrate is not bound in such a situation to follow the
procedure laid down in Sections 200 and 202 of the Code for
taking cognizance of a case under Section 190(1)(a) though it is
open to him to act under Section 200 or Section 202 also.
[See India Carat (P) Ltd. v. State of Karnataka [(1989) 2 SCC
26132 : 1989 SCC (Cri) 306 : AIR 1989 SC 885] .] The informant is
not prejudicially affected when the Magistrate decides to take
cognizance and to proceed with the case. But where the
Magistrate decides that sufficient ground does not subsist for
proceeding further and drops the proceeding or takes the view
that there is material for proceeding against some and there
are insufficient grounds in respect of others, the informant
would certainly be prejudiced as the first information report
lodged becomes wholly or partially ineffective. Therefore, this
Court indicated in Bhagwant Singh case [(1985) 2 SCC 537 :
1985 SCC (Cri) 267 : AIR 1985 SC 1285] that where the
Magistrate decides not to take cognizance and to drop the
proceeding or takes a view that there is no sufficient ground for
proceeding against some of the persons mentioned in the first
information report, notice to the informant and grant of
opportunity of being heard in the matter becomes mandatory.
As indicated above, there is no provision in the Code for issue
of a notice in that regard.”
46. Gangadhar Janardan Mhatre (supra) has discussed
the Magistrate’s powers to take cognizance of an offence. It
has held that, even if, the report forwarded to the police by the
Magistrate makes out no case against the accused, the
Magistrate can ignore the conclusion arrived at by the
Investigating Officer, independently apply his mind to the,
facts emerging from the investigation, and take cognizance, if
he thinks fit, by exercising powers under Section 190(1)(b) of
the Criminal Procedure Code. It has also held that, a
Magistrate is not bound to follow the procedure under
27
Sections 200 and 202 for taking cognizance under Section
190(1)(a) of the Criminal Procedure Code though, it is open to
him to act under Section 200 or 202 also.
47. H.N. Rishbud & Anr. (supra) has explained the
scheme of the Criminal Procedure Code with regard to
investigation. It has considered the scope of Section 5 (4) of
the Prevention of Corruption Act, 1987 in light of the scheme
of the Criminal Procedure Code. It has held that, a defect or
illegality in investigation, however serious, has no direct
bearing in the competence or the procedure relating to
cognizance or trial. It has held that, no doubt in one sense,
Clauses (a), (b) and (c) of Section 190(1) are conditions or
requisites for taking cognizance, it is not possible to say that
cognizance on an invalid police report is prohibited and
therefore, is a nullity. An illegality committed in the course of
the investigation does not affect the competence and the
jurisdiction of the Court of trial.
48. Prakash P. Hinduja & Anr. (supra) has explained
that investigation includes all proceedings under the Criminal
Procedure Code for collection of evidence conducted by a
police officer or by any person other than a Magistrate as
authorized by a Magistrate in this regard. Investigation means
28
the formation of the opinion as to whether on the material
collected, there is a case to place the accused before a
Magistrate for trial and if so, taking necessary steps for the
same by filing a chargesheet under Section 173. It has held
that, a Magistrate cannot interfere with the investigation and
that, a Magistrate is not bound to accept the final report. If
the Magistrate feels that the evidence and the material
collected during investigation has justified prosecution of the
accused, he may not accept the final report and take
cognizance of the offence. This action of the Magistrate does
not amount to interference with the investigation.
49. M.C. Mehta (Taj Corridor Scam) (supra) has
emphasised the importance of the opinion formed by the
officer-in-charge of the police station. It has observed that,
even a competent Magistrate cannot compel the police officer
concerned to form a particular opinion, although the
Magistrate may have certain supervisory power under the
Criminal Procedure Code. It has also observed that the
opinion of the investigating officer is not a legal evidence and
that, at the stage of Section 173(2) the question of
interpretation of legal evidence does not arise.
29
50. In Sharif Ahmed and Another (supra), Supreme
Court has held that, the requirement of further evidence or
supplementary chargesheet as referred to under Section
173(8) of the Criminal Procedure Code is to make additions to
a complete chargesheet and not to make up or reparate for a
chargesheet which does not fulfil the requirements of Section
173(2) thereof. It has held that, a chargesheet is complete
when it refers to material and evidence sufficient to take
cognizance and for the trial. The nature and standard of
evidence to elucidate in a chargesheet should prima facie
show that an offence is established if the material and
evidence is proven. The chargesheet is complete where a case
is not exclusively dependent on further evidence and the trial
can proceed on the basis of evidence placed on record with the
chargesheet.
51. The Court of Appeal in Wednesbury Corporation
(supra) is of the view that a Court is entitled to investigate the
action of the local authority with a view to seeing whether it
has taken into account matters which it ought not to take into
account or conversely it has refused to take into account
matters which are to be taken into account. Once that
question is answered in favour of the local authority, it may
30
still be permissible to say that the local authority nevertheless
has come to a conclusion so unreasonable that no reasonable
authority would ever have come to it and in such a case Court
can interfere. The power of the Court, however, to interfere in
any case is not that of an appellate authority to override
decision of local authority but that of a judicial authority
which is concerned only to see whether the local authority has
contravened the law by acting in excess of the powers, which
Parliament has confided in it.
52. S. Kasi (supra) has held that, if the Co-ordinate
Bench does not agree with the principles of the law
enunciated by another Bench a matter may be referred only to
a Larger Bench and that, no decision can be arrived at
contrary to or inconsistent with the law laid down by the Co-
ordinate Bench.
53. Bikramjit Singh (supra) has noticed the right to
default bail under Section 167(2) of the Criminal Procedure
Code. It has held that, right to default bail becomes complete
and indefeasible as soon as application for grant of default
bail is made on the expiry of the maximum period prescribed
before a chargesheet is filed. It has also held that, this
indefeasible right cannot be defeated by filing of a chargesheet
31
nor can it be defeated by non-disposal or wrong disposal of an
application for default bail before or after filing of chargesheet
and that, filing a subsequent application for default bail will
not defeat the indefeasible right already standing accrued to
the accused based on the first application. It has held that,
right to default bail is a fundamental right and not a mere
statutory right.
54. Aslam Babalal Desai (supra) has considered the
issue as to whether bail granted under Section 167(2) of the
Criminal Procedure Code can be cancelled for failure to
complete the investigation within the period prescribed on the
presentation of the chragesheet thereafter. It has held that,
mere filing of chargesheet, in absence of any strong ground, is
not a correct approach to cancel bail granted.
55. Rakesh Kumar Paul (supra) has held that, an
accused is entitled to make an application for grant of default
bail.
56. Thana Singh (supra) has issued directions and
guidelines to be followed during the trials under the Act of
1985.
57. Singhara Singh & Ors. (supra) has observed that
the principle, where a power is given to do a certain thing in a
32
certain way the thing must be done in that way or not at all
and that the other method or purposes are necessarily
forbidden applies to judicial officer making a recording under
Section 164 of the Criminal Procedure Code.
58. Sanjay Dutt (supra) has held that, in interpreting
penal statute, in case of two reasonable and possible
constructions, one which leans in favour of the accused
should be preferred.
59. Dr. D.C. Wadhwa & Ors. (supra) has observed that,
repeated promulgation of ordinances of the Governor from
time to time without getting them replaced by Acts is a
practice in flagrant violation of the constitutional provisions.
60. Vijaysinh Chandubha Jadega (supra) has held that,
non-compliance with Section 50 of the Act of 1985 would
cause prejudice to the accused and would render the recovery
of contraband suspect as also vitiate the conviction if the
same is recorded only on the basis of recovery of the
contraband. It has also held that, whether Section 50 stands
complied with or not is a matter of trial and no absolute
formula can be laid down with regard thereto.
61. Narendra Kumar Amin (supra) has considered the
contentions of default bail. It has held that non-filing of full
33
set of documents with the chargesheet within the statutory
period does not entitle the accused to default bail so long as
the chargesheet is in compliance with Section 173(2) of the
Criminal Procedure Code. It has held that, Section 173 (5) of
the Criminal Procedure Code is directory.
62. Mrinal Kanti Sil (supra) having found that its view
ran counter to the ratio of Co-ordinate Bench in another
matter, referred the issue of law for decision by a Larger
Bench.
63. Shri Umed (supra) has dwelt upon the issue of
reconsideration of an earlier orbiter ruling not really arising on
the facts before the Court. The former ruling which was
considered as an orbiter was overruled as being erroneous
because of its binding effect on the High Courts.
64. R S Pai and another (supra) has held that, additional
evidence gathered during investigation can be produced by the
police officer even after submission of the chargesheet. It has
construed sub-section (5) of Section 173 of the Criminal
Procedure Code as directory and not mandatory.
65. Central Board of Dawoodi Bohra Community and
Another (supra) has held that, law laid down by the Supreme
Court is binding on any subsequent Bench of lesser strength.
34
A smaller Bench cannot disagree or dissent from the view of
law taken by a Larger Bench. In case of doubt, smaller Bench
can invite attention of the Chief Justice and request the
matter for being placed for hearing before a Bench larger than
one whose decision is being doubted. However, it will be open
only for a Bench of co-equal strength to express an opinion
doubting the correction of the view taken by the Bench whose
decision is being doubted.
66. Drug Enforcement Field Officers Hand Book issued by
the Narcotics Control Bureau, Ministry of Home Affairs,
requires the raiding party to have a narcotics drugs kit to test
the contraband. It has provided that since the tests returned
by the Narcotics Drug Kit are only indicative, it is often
possible that a designated lab will return a negative report.
However, by that time the suspected person has already been
arrested and spent some time in judicial custody. It has noted
such fact in order to emphasise that, the arrest must be
preceded with the sample being tested through the Narcotics
Drug Kit so that the person is not arrested merely on the basis
of a suspicion but on the basis of some empirical evidence as
that of the result undertaken through Narcotics Drugs Kit.
35
67. What emanates out of the authorities cited before us
namely, Gangadhar Janardan Mhatre (supra), H.N.
Rishbud & Anr. (supra), Prakash P. Hinduja & Anr.
(supra), M.C. Mehta (Taj Corridor Scam) (supra), Sharif
Ahmed and Another (supra) and Narendra Kumar Amin
(supra), are that power of the Magistrate to accept or not to
accept a report submitted by an investigating agency, under
Section 173(2)(i) of the Criminal Procedure Code is sufficiently
large enough for the Magistrate to either accept the report,
take cognizance of the offence and issue process or to disagree
with the report or drop the proceedings or direct further
investigation. The Magistrate can also ignore the conclusion of
the investigating agency as returned in the report and take
cognizance by exercising powers under Section 190(1)(b). A
Magistrate is not bound to follow the procedure laid down
under Sections 200 and 202 of the Criminal Procedure Code
for taking cognizance under Section 190 (1)(a) though it is
open to him to do so under Section 200 or Section 202 also.
The cognizance taken on an invalid police report cannot be
said to be a nullity as illegality committed in the course of
investigations does not affect the competence and the
jurisdiction of the Court. A report under Section 173(2) of the
36
Criminal Procedure Code is the opinion of the investigating
officer and not a legal evidence and therefore, the question of
interpretation of legal evidence does not arise at that stage of
submission of the chargesheet. Supplementary chargesheet
under Section 173(8) of the Criminal Procedure Code allows
further evidence to be filed.
68. As on date therefore, if a charge sheet which delineates
the evidence required for the accused to stand trial is filed
within time, then the accused is not entitled to default bail. A
charge sheet without the Chemical Examination Report filed
within time is nonetheless a charge sheet which disentitles the
accused to default bail, as the Law stands today.
69. The issue as to whether, chargesheet without the
Chemical Examination Report entitles the accused in an
NDPS case to default bail is pending consideration before the
Supreme Court. Supreme Court has not decided such issue
finally. At present, the law on the subject as it stands today,
lays down, a charge-sheet is complete if, the materials and the
evidence are before Court along with the charge-sheet for the
Court to take cognizance. Filing of supplementary charge-
sheet in order to bring on record the forensic laboratory test
report is also permissible. Law as it stands today also requires
37
the Courts to decide an application for grant of bail,
notwithstanding the pendency of the issue as to whether,
Chemical Examination Report must accompany the
chargesheet or not. Two High Courts namely, Bombay and
Guwahati have held that charge-sheet without the Chemical
Examination Report does not entitle the accused to a default
bail.
70. On the strength of the authorities presently subsisting,
we are not in a position to return a finding that the charge-
sheet without the Chemical Examination Report makes the
investigation incomplete. The first issue is answered
accordingly.
71. On parity with the seasons for the findings on the first
issue, the second issue is also answered in the negative and
as against the accused.
72. So far as the third issue is concerned, we find that,
three coordinate Benches judgments rendered in Ebrahim
Hossain (supra), Debashish Tarafder (supra) and Raju
Mandal (supra) are binding upon us. They are first in point
of time and required to be followed by the subsequent Division
Benches. Two subsequent Division Benches did not follow the
ratio laid down in Ebrahim Hossain (supra), Debashish
38
Tarafder (supra) and Raju Mandal (supra) since apparently,
attention of those two Division Benches were not drawn to
such authorites.
73. Be that as it may, since, Ebrahim Hossain (supra),
Debashish Tarafder (supra) and Raju Mandal (supra) are
binding upon us, and we are not in a position to take a view
which is contrary to that returned in those three binding
authorities. We need not refer any issue to the larger Bench as
suggested. The third issue is answered accordingly.
74. On the merits of the plea for bail, we have recorded the
situation with regard to individual petitioners in their
respective applications for bail on March 26, 2025. Police had
filed chargesheet on September 15, 2024 and subsequently a
supplementary charge sheet along with Chemical Examination
Report in CRM (NDPS) 1811 of 2024. Commercial quantity of
brown sugar was seized from the possession of the petitioner
therein. In CRM (NDPS) 1850 of 2024, chargesheet was filed
on June 21, 2024 and supplementary chargesheet along with
Chemical Examination Report was filed on October 21, 2024.
Commercial quantity of brown sugar was seized from the
possession of the petitioner therein. In respect of the
petitioner in CRM (NDPS) 1893 of 2024, both chargesheet and
39
supplementary chargesheet along with Chemical Examination
Report were submitted before the jurisdictional Court. Again,
commercial quantity of narcotics was seized from such
petitioner.
75. None of the petitioners, therefore, have been able to
overcome the restrictions under Section 37 of the Act of 1985.
Co-accused in CRM(NDPS) 1893 of 2024 was enlarged on bail
by the Co-ordinate Bench on November 27, 2024 on the basis
of Idul Mia (supra). We have held that, Idul Mia (supra) was
rendered without considering three binding precedence and,
therefore, cannot be considered as good law. In our view, since
co-accused in CRM (NDPS) 1893 of 2024 was enlarged on bail
by the Co-ordinate Bench on the basis of Idul Mia (supra),
the petitioner before us cannot claim parity and is not entitled
to bail on such basis.
76. Therefore, interim bails granted in favour of the
petitioners stand cancelled.
77. Petitioners will surrender forthwith.
78. In default, jurisdictional Court will take appropriate
steps. The fourth issue is answered accordingly.
79. C.R.M (NDPS) 1617 of 2024, C.R.M (NDPS) 1811 of
2024, C.R.M (NDPS) 1850 of 2024, C.R.M (NDPS) 1893 of
40
2024 along with all connected applications are disposed of
accordingly.
[DEBANGSU BASAK, J.]
80. I agree.
[MD. SHABBAR RASHIDI, J.]
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