The Punjab and Haryana High Court last week made an important observation, holding that the Forensic report forms the foundation of a case under the NDPS (Narcotic Drugs and Psychotropic Substances) Act, and that if it is missing, the entire case of prosecution falls to the ground.
While granting bail to one Vinay Kumar, 7000 tablets of 'Clovidol-10 SR' (Tramadol Hydrochloride) were allegedly recovered from his possession, the Bench of Justice Gurvinder Singh Gill made this observation.
Importantly, the final report/challan submitted in the instant case did not include the FSL report, and the High Court concluded that a case under the NDPS act could not stand without the FSL report.
The matter before COURT:
Following the alleged recovery from the accused/bail applicant, the police investigated the matter and filed a report under Section 173 Cr.P.C. before the trial Court on March 4, 2021; however, the police's final report was not accompanied by the FSL's report (Forensic Science Laboratory).
Importantly, the prosecution in the instant case failed to file the FSL report within the 180-day period required for challan filing under the provisions of the NDPS Act read with Section 167 Cr.P.C.
As a result, when the said period expired on June 20, 2021, the petitioner filed an application under Section 167(2) Cr.P.C. for his release on bail on June 22, 2021, arguing that the challan filed by the police could not be said to be complete in the absence of the FSL report.
The said application was considered by the trial Court, but it was dismissed by order dated July 5, 2021, and thus, the petitioner moved the High Court with the instant bail application, challenging the trial Court's order denying him bail.
Importantly, the Punjab & Haryana High Court has referred the question of whether a challan filed without the report of FSL is an incomplete challan (in an NDPS Case) to a larger Bench in Julfkar Vs. State of Haryana [2020 (4) Law Herald3188], which is still pending before the High Court.
The issue in following case was,
"Whether in a case under the NDPS Act 1985, a challan presented under Section 173 (2) of the Code of criminal Procedure, is an in- complete challan if presented without the report of the chemical Examiner/Forensic Science Laboratory"
OBSERVATION BY COURT:
The Court stated at the outset that a case under the NDPS Act can only be sustained if the prosecution is able to establish that the article recovered is indeed contraband, which can only be established through chemical examination, which is normally done through FSL established by the Government.
The High Court added, “In other words, the report of the FSL forms the foundation of the case of the prosecution and in case the same is not there the entire case of prosecution falls to the ground.”
However, the Court did take into account the fact that there are some conflicting judgments from the Punjab and High Courts, and the matter - whether a challan filed without FSL report is an incomplete challan - has been referred to a Division Bench and is still under consideration.
Against this backdrop, the Court granted the petitioner bail under Section 167(2) Cr.P.C., while also taking into account the fact that the petitioner has been behind bars for more than 9 months and is not said to be involved in any other case.
The Court did, however, clarify that the prosecution would be free to move for bail cancellation/recall of the instant order if the reference made to a larger Bench in Julfkar's case (Supra) is answered in favour of the prosecution.
CASE – Vinay Kumar @Vicky v. State of Haryana