The Gujarat High Court recently comprising of a bench of Justice Samir J. Dave has recently observed that a charge sheet filed without annexing the FSL report cannot be termed as defective or incomplete and thus, non-filing of the FSL report gives no indefeasible right to the accused to get default bail. (SHANKAR @ SHIVA MAHESHWAR SAVAI vs. STATE OF GUJARAT)
Facts of the case
The present bail application was filed by the applicants with a request to release the applicants on default bail in connection with case registered with Kadodara GIDC Police Station, District Surat for the offence punishable under Sections 8(c), 20(c), 29 of the NDPS Act.
The investigation of the offence started and contraband was sent to the FSL on November 1, 2019. The investigating agency filed the charge sheet on December 24, 2019, without the FSL report mentioning that once FSL will issue the certificate, the same shall be produced.
The present bail application was filed on the ground that the charge sheet was incomplete.
Contention of the Parties
It was submitted by learned advocate for the applicants that only report of FSL can decide whether seized contraband does fall under the purview of Narcotics Drugs and Psychotropic Substance or in absence of such a crucial certificate, the investigation cannot be said as a complete and in absence of such certificate, the charge sheet cannot be said as an incomplete charge sheet. That, the learned Special Judge has ignored the provisions of law and rejected the application of the applicants. Ultimately, it was submitted by learned advocate for the applicants to allow present application.
On the other side, learned APP for the respondent- State has strongly objected the submissions made by learned advocate for the applicants and submitted that FSL Gandhinagar was given dated 26.11.2019 as per which the muddamal confiscated was shown as narcotic substance ganja and thereafter, the charge sheet against the accused was filed on 24.12.2019 within period prescribed under law. That, the stand taken by the applicants for default bail is not proper and valid. Ultimately, it was submitted by learned APP for the respondent-State has requested to reject the present application.
Courts Observation and Judgment
The bench at the very outset observed, "If we consider the law point then Section 173 of the Cr. P.C provides that officer incharge of the police station has to forward to the Magistrate empowered to take cognizance of the offence, the report of the police after completion of the investigation. Sub-Section (2) provides the particulars which are required to be mentioned in the final report. Sub-section (8) of Section 173 clearly states that the investigating agency is not precluded from undertaking further investigation of the case and to forward further reports regarding evidence which may be collected during further investigation."
The bench further noted, "Thus, it is not that after completion of investigation of the case and presentation of final report before the Magistrate the investigating agency is precluded from collecting further evidence and producing it before the competent court. In these circumstances it may not be correct to hold that merely because certain report of expert is not accompanying with the final report, the said report is defective or incomplete. On the analysis of the statutory provisions of Section 173 and 167 of Cr. P. C, it can safely be stated that a charge sheet containing details specified in Section 173 of the Cr. P. C, if filed within the period prescribed under Section 167(2) is not vitiated or incomplete simply because the same was not accompanied by the FSL report."
The bench dismissing the application remarked, "While considering aforesaid law point and facts of the case, this is considered view of this court that the investigating agency has completed the investigation and police authorities is awaiting FSL report does not invite provision of 167(2) of Code of Criminal Procedure because FSL report is only to be considered as expert opinion/scientific conclusion. Not only that, the charge sheet of the present case was filed by NDPS Case No. 36 of 2019 on 24.12.2019 and looking to the charge sheet the said Forensic Officers of FSL, Gandhinagar have been shown as witness no.24 in the charge sheet.
Thus, it can safely be stated that the charge sheet in the instant case has been filed and the same without annexing with it the FSL report cannot be termed as defective or incomplete. Hence, the applicants are not entitled for default bail and no indefeasible right is violated by non filing/non supplying the FSL report. Therefore, I do not find any merit in this bail application. The same is, accordingly, dismissed. Rule stands discharged."
Read Judgment;
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