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Calcutta High Court (Appellete Side)
Md. Sabir Mondal vs The State Of West Bengal & Anr on 8 July, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
CRM (NDPS) 418 of 2025
Md. Sabir Mondal
Vs.
The State of West Bengal & anr.
For the petitioner : Mr. Sourab Mondal
Mr. Subhajit Chowdhuri
Mr. Rony Mondal
Mr. Arijit Bhuiya
For the state : Mr. Rudradipta Nandi
Md. Ejaj Akher
Heard on : 26.06.2025
Judgment on : 08.07.2025
Dr. Ajoy Kumar Mukherjee, J.
1. Petitioner Md. Sabir Mondal was arrested on 18.03.2024 in
connection with Gariahat P.S. Case no. 261 of 2024, with the allegation that
194 bottles of Codeine Phosphate and Triprolidine Hydrochloride syrup of
100ml each was allegedly found in the possession of the petitioner. The
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investigation has already been ended in a charge sheet which was submitted
on 07.09.2024 without the Chemical Examination report. Subsequently
charges have been framed on 04.03.2025 but till now prosecution could not
examine a single witness.
2. Mr. Mondal in support of petitioner’s bail prayer submits that co
accused of the instant case has been granted bail by this Court on
16.12.2024 in CRN NDPS 1736 of 2024, on the ground that charge sheet
which was filed without the Forensic report within 180days from his arrest
was an incomplete charge sheet and as such as a matter of parity, petitioner
is also entitled for bail on the same ground. Further contention of the
petitioner is that in the case of Md. Arbaz and others Vs. NCT Delhi, the
Supreme Court has taken a view that the same is not ground for the default
bail and as such the same was referred to a three Judges Bench for
consideration by granting interim bail to the petitioners therein and
thereafter many other applications on the same ground have been tagged
with the Md. Arbaz and others (supra) case and all were granted interim
bail.
3. He further submits that this High Court by an order dated 08.10.2024
in CRM (NDPS) 1359 of 2024 Idul Mia Vs. State of West Bengal reported
in 2024 SCC Online Cal 9109 granted default bail on the ground of non-
filing the charge sheet with the FSL report within 180 days of arrest. It is
further submitted on behalf of the petitioner that thereafter in the case of
Ananta Barman Vs. State of West Bengal in CRM (NDPS) 1617 of 2024,
by an order dated 02.05.2025 this Court has taken a view that non filing of
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Forensic Science Laboratory (FSL) report with charge sheet within 180 days
is not a ground for grant of default bail.
4. Accordingly Mr. Mondal submits that two different co-ordinate
Benches of this court passed divergent decision on the same issue and as
such the matter may be referred to a larger Bench for consideration of the
instant issue and in the meantime the petitioner may be released on interim
bail.
5. Mr. Nandi Learned counsel appearing on behalf of the State opposed
the bail prayer and submits that in the case of Ananta Barman (supra) this
court has decided that the law laid down in Idul Mia’s case (supra) is not a
good law and recently Guwahati High Court in Jitul Ali Vs. Union of
Indian represented by NCB reported in 2024 SCC Online Gau 1916 had
also taken the view that since the decision of the Supreme Court of India in
the case of CBI Vs. Kapil Wadhawan reported in 2024 INSC 57 is binding
upon the court, the decision of Idul Mia (supra) cannot be accepted to have
a persuasive effect in connection with that case. He further submits that the
co accused of this case was released on bail relying upon the decision of
Idul Mia (supra) and as such it cannot be said that present petitioner is
almost on the same footing and for which he is entitled to be realised on
bail.
6. Mr. Nandi further contended that the restrictions imposed in section
37 of the Narcotic Drugs and Psychotropic Substances Act, 1985(in short
Act of 1985) clearly attracts in respect of the present petitioner, in view of
the facts and circumstances of the case and the trial is going to start
shortly.
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7. Therefore, the issue raised before this court is:
(i) whether the petitioner is also entitled to be released on
bail/interim bail on the facts and circumstances of the case and
also on the ground that co accused of this case obtained bail
relying upon the decision of Idul Mia (supra), and that he is
also on the same footing.
(ii) whether the instant matter is required to be referred before a
larger Bench.
8. The self same issue have been elaborately discussed by the Division
Bench of this Court in the judgment of Ananta Barman (supra) decided on
02.05.2025.
9. The upshort of the discussion made in the said judgment is required
to be reproduced below:-
This High Court earlier had dealt with the same issue i.e. whether the
applicant is entitle to default bail under NDPS 1985, if the prosecution
fails to file chemical examination report with the charge sheet within
statutory period of 180 days in the Ebrahim Hossain’s Case reported
in 2022 SCC Online Cal, 331, Debasish Tarafdar’s case reported in
2022 SCC Online Cal 534 and Raju Mondal Vs. State, 2022 SCC
Online Cal 623 and the observation of the division bench made in the
said cases are as follows:-
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Ebrahim Hossain Case (Supra):-
Charge sheet submitted without chemical examination report could be
construed as a report under section 173(2) of the Cr.P.C. and
therefore the accused is not entitled to default bail.
Debasish Tarafdar Case (supra):-
In this case court relying upon various authorities of Supreme court
as also of the Co-ordinate Bench of this Court held that the infraction,
if there be any of section 52(A) (4) of the Act of 1985, that has to be
evaluated at the time of trial and not otherwise. It has also noted that
the procedure prescribed under section 52(A) 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.
Raju Mondal Case (supra):-
In this case court considered section 36 (A) of the Act of 1985
including section 36(A) (4) thereof and held that filing of charge sheet
or report under section 173 of the Cr.P.C. and the taking of
cognizance of an offence under section 190 thereof are two different
distinct and separate acts. While, a chargesheet or report under
section 173 of the Cr.P.C. 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 he was
entitled to default bail in view of chemical examination report not
being filed along with the charge sheet.
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10. A Co-ordinate Bench, in the case of Rakesh Sha Vs. State of West
Bengal reported in 2023 SCC Online Cal 2463 relying upon the judgment
of Subhas Yadav Vs. State of West Bengal reported in 2023 SCC Online
Cal 313 and Sagar Parshuram Josh Vs. State of Maharashtra reported
in 2021 SCC Online Bom 3051 held that filing of a charge sheet without
the examination report, in relation to an offence under the NDPS Act, is an
exercise in futility and raises the presumption of the IO filing a cipher only
for the sake of closing the first window of the 180 days under the proviso to
36(A) (4) of the Act and therefore the petitioner was released on bail as the
materials placed before the court falls significantly short of the statutory
mandate of the proviso to section 36(A) (4) as well as procedural infirmity of
a C.S. sans the chemical examination report. In Idul Mia’s Case (Supra) a
Division Bench of this court which took note of the fact that Jammu &
Kashmir High Court as well as Bombay High Court have taken the view that
the right of statutory bail does not accrue in favour of an accused, if a
charge sheet containing the particulars mentioned in 167(2) Cr.P.C. is filed
within the stipulated time period, even if the charge sheet is not
accompanied by the FSL report but since a co-ordinate Bench of this High
Court in Rakesh Sha case (supra) has taken a contrary view, following
judicial discipline, bail was granted to the petitioner Idul Mia.
11. Be it mentioned that neither in the Rakesh Sha Case (Supra) nor in
the case of Idul Mia (Supra), the Court was made aware of the decisions
rendered earlier by co ordinate Bench in the cases of Ebrahim Hussain and
another (Supra), Raju Mondal (supra) and Debasish Tarafdar (supra)
which are binding precedent on the subsequent Co ordinate Benches.
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12. It is also to be noted that the Division Bench, while passed the
judgment in the case of Rakesh Shah (supra) relied upon the judgment of
Subhas Yadav (supra) but in the said judgment of Subhas Yadav (Supra)
the issue as to whether a charge sheet sans the chemical examination
report, would entitle the accused to default bail or not did not fall for
consideration before the special Bench. Therefore, the judgment passed in
Subhas Yadav (Supra) cannot have any application to decide the instant
issue i.e. whether non filing of chemical examination report with the charge
sheet within 180 days of arrest gives rise to statutory bail/default bail to the
petitioner or not.
13. In the said Rakesh Sha (supra) judgement reliance had also been
placed on Sagar Parshuram Joshi, case reported in 2021 SCC Online Bom
3051 but said judgment of the Bombay High Court passed by a Single
Bench subsequently overruled by the same Bombay High court in Manas
Krishna T.K. Vs. State reported in 2021 SCC Online Bom 2955, wherein
it was held 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. read with section 36-A(4) of the NDPS Act, the accused cannot insist
upon a default bail.
14. In short the judgment passed in Idul Mia (supra) had only relied upon
the judgement of Rakesh Shah (Supra) and in consideration of judicial
discipline but the earlier judgements of co-ordinate Bench of this High court
in the cases of Ebrahim Hussain (supra), Debasish Tarafdar (supra), Raju
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Mondal (supra) were not drawn to the attention of the co-ordinate Bench.
On the other hand while the judgment passed in the case of Rakesh shah
(supra) there also the binding precedent of Ebrahim Hussain (Supra)
Debasis Tarafdar (Supra) and Raju Mondal (Supra) were not drawn to the
attention of the Division Bench. At the cost of repetition, the judgment
delivered in Rakesh Sha (Supra),relying of which judgment in Idul Mia
(supra) was passed, was based upon the ruling of Subhas Yadav (supra)
which had not dealt with the present issue and the other judgment relied by
the court in Sagar Parshuram Joshi (supra) was also overruled by the same
Bombay High court in Manas Krishna T.K. (supra).
15. It is a fact that the issue whether charge sheet without chemical
examination report entitles accused in a case under the Act of 1985 to
default bail or not is pending consideration before the Supreme Court.
Supreme Court has not yet decided such issue finally. Therefore, in the
Ananta Barman‘s Case (supra) the Division Bench of this Court came to
ultimate finding which is reproduced below:-
“69. 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 the
supplementary charge sheet in order to bring on record the forensic laboratory
test report is also permissible. Law as its stands today also requires 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 charge sheet 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.”
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16. At this stage it would not be out of context to refer the rule of per
incuriam as decided in the case of Manas Krishna T.K., reported in 2021
SCC Online Bom 2955, where it was held para 45 and 46 are as follows:-
45. The rule of “per incuriam” has been developed as an exception to the
Doctrine of Judicial Precedent. Literally, it means judgment passed in ignorance
of a relevant statute or any ignorance of a previous decision of its own or of a
Court of coordinate jurisdiction or a superior court which covered a case before it.
A judgment can also be “per incuriam” if it is not possible to reconcile its ratio
with that of a previously pronounced judgment of a coequal or larger Bench or if
the decision of a High Court does not align with the views of the Supreme Court.
(See Shah Faesal v. Union of India – (2020) 4 SCC 1).
46. The discipline demanded by a precedent or the disqualification or diminution
of a decision on the application of the per incuriam rule is of great importance,
since without it, the certainty of law, consistency of rulings, and comity of courts
would become a costly casualty. Therefore, Judicial discipline envisages that a
coordinate bench follows the decisions of an earlier coordinate bench. If a
coordinate bench does not agree with the principles of law enunciated by
another bench, the matter may be referred only to a larger bench. But no
decision can be arrived at contrary to or inconsistent with the law laid down by
the coordinate bench. (See State of Punjab v. Diwan‘s Modern Breweries Ltd. –
(2004) 11 SCC 26; and Roger Shashoua v. Mukesh Sharma – (2017) 14 SCC
722)(Emphasis added)
17. So far as the second issue as to whether the present matter is
required to be referred before a larger bench the said Division Bench in
Ananta Barman cases also replied in para 72 & 73 as follows:-
“72. So far as the third issue is concerned, we find that, three coordinate
Benches judgments rendered in Ebrahim Hossain (supra), Debasish Tarafdar
(supra) and Raju Mondal (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), Debasish Tarafdar (supra) and Raju Mondal (supra) since
apparently, attention of those two division benches were not drawn to such
authorities.
73. Be that as it may, since Ebrahim Hossain (supra), Debasish Tarafdar
(supra) and Raju Mondal (supra) are binding upon us, are not in a position to
take a view which is contrary to that returned in those three biding
authorities. We need not refer any issue to the larger Bench as suggested. The
third issue is answered accordingly.”
18. In view of aforesaid discussion it is clear that the Division Bench of
this High Court has clearly laid down the law in Ananta Barman‘s case that
so long the issue as to whether charge sheet within the statutory period
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without the chemical examination report entitles the accused, in a case
under the Act of 1985, to default bail, is pending for consideration before the
Supreme Court, the law on this subject as it stands today is that a charge
sheet is complete, if the materials and the evidence are before court along
with the charge sheet for taking cognizance. Filing of supplementary charge
sheet in order to bring on record the forensic laboratory test report is also
permissible and a charge sheet without the chemical examination report
filed within time is nonetheless a charge sheet, which disentitles the
accused to default bail. The aforesaid ratio laid down in Ananta Barman’s
Case has a binding precedent upon this court
19. In this context it is also worthy to be mentioned that the Supreme
Court elaborately discussed the doctrine of binding precedent in the
judgment of Chandra Prakash and others Vs. State of U.P. and another
reported in (2002) 4 SCC 234 where in it was held as follows:-
22. A careful perusal of the above judgments shows that this Court took note
of the hierarchical character of the judicial system in India. It also held that it
is of paramount importance that the law declared by this Court should be
certain, clear and consistent. As stated in the above judgments, it is of
common knowledge that most of the decisions of this Court are of significance
not merely because they constitute an adjudication on the rights of the parties
and resolve the disputes between them but also because in doing so they
embody a declaration of law operating as a binding principle in future cases.
The doctrine of binding precedent is of utmost importance in the
administration of our judicial system. It promotes certainty and consistency in
judicial decisions. Judicial consistency promotes confidence in the system,
therefore, there is this need for consistency in the enunciation of legal
principles in the decisions of this Court. It is in the above context, this Court in
the case of Raghubir Singh [(1989) 2 SCC 754] held that a pronouncement of
law by a Division Bench of this Court is binding on a Division Bench of the
same or smaller number of Judges. It is in furtherance of this enunciation of
law, this Court in the latter judgment of Parija [(2002) 1 SCC 1] held that :
(SCC p. 4, para 6)
“But if a Bench of two learned Judges concludes that an earlier judgment of
three learned Judges is so very incorrect that in no circumstances can it be
followed, the proper course for it to adopt is to refer the matter before it to a
Bench of three learned Judges setting out, as has been done here, the
reasons why it could not agree with the earlier judgment. If, then, the Bench
of three learned Judges also comes to the conclusion that the earlier judgment10
of a Bench of three learned Judges is incorrect, reference to a Bench of five
learned Judges is justified.” (Emphasis Added)
20. Since the pronouncement of law by the Division Bench in Ananta
Barman Case (supra) is binding upon this court for the time being, so
petitioner is not entitled to default bail nor he is on the same footing with
the other co accused who have been granted bail relying the case of Idul
Mia.
21. Now so far as the prayer for bail on the merits of allegation, it
appears that the rigour of section 37 of NDPS Act clearly attract in respect
of the present petitioner in the facts and circumstances of the case, as well
as from the materials placed before me. Submission made by learned
Counsel for the State that charge has already been framed and the recording
of evidence is going to start shortly is also taken care of. Considering what is
discussed above, the prayer for bail made by the petitioner stands rejected.
22. CRM (NDPS) 418 of 2025 thus stands disposed of.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(DR. AJOY KUMAR MUKHERJEE, J.)
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