In BAIL APPLN. 70/2024-DEL HC- ‘No directions have been given to Courts to release accused persons on default bail if chargesheet is filed without FSL report’: Delhi HC rejects default bail plea of accused in drug case involving 40 kg opium where FSL report was not filed along with chargesheet
Justice Swarana Kanta Sharma [12-01-2024]

Read Order: LEISHANGTHEM I LOYANGAMBA v. STATE

Tulip Kanth

New Delhi, January 16, 2024: While observing that no general directions have been given to the Courts to release the accused persons on default bail if the chargesheet is filed without an FSL report, the Delhi High Court has rejected the bail plea of a man booked under the NDPS Act.

The facts of the case were that a secret information was received by the Special Cell that in next 4-5 days, two people from Imphal, Manipur would be carrying drugs from Manipur for supplying them in areas of Delhi NCR and Punjab. On 17.02.2023, the Special Cell had received information that at around 3-4 PM, two residents of Imphal i.e. Ranbir Singh and Loyangamba (applicant), who are involved in business of heroin, will come through loop road from MB road towards Sarita Vihar, Delhi in white coloured Maruti Brezza Car. Thereafter, a raiding team was formed and at around 03:25 PM, the said car had reached the spot and had stopped on the side of road. Accused Ranbir Singh i.e. the driver of the car had then got down from the car and stood on the footpath carrying a bag on his shoulder. Immediately thereafter, the raiding team apprehended the accused, and then the present applicant who was sitting in the car, with a black coloured bag with HP logo, had also started running, but he was captured by the raiding team.

After complying with statutory provisions, the raiding team had conducted search of the car and the bags being carried by the accused persons, and 10kg of opium each was recovered from the bags being carried by the accused persons and 30kg of opium was recovered from the car. Accordingly, the present FIR was registered, accused persons were arrested, and were sent to police remand.

It was the case of the accused-appellant that the chargesheet in this case was filed without an FSL Report, which was considered as main focal point of prosecution in a case under NDPS Act. It was stated that since FSL report was not filed along with the chargesheet, the chargesheet in such a case would be considered as 'incomplete' and thus, the applicant would be entitled to default bail.

It was also submitted that the Apex Court in several recent decisions, including in Mohd Arbaz & Ors. v. State of NCT of Delhi, has granted bail to accused persons in cases where FSL report was not filed alongwith main chargesheet within a period of 180 days.

Referring to the abovementioned judgment, the Sate Counsel stated that till the issue in question i.e. whether a charge-sheet filed without FSL report is complete or incomplete for the purpose of default bail is decided by the Apex Court, the prevailing law would cover the present case and the petitioner would not be entitled to grant of default bail.

The application in question had been filed seeking default bail on the ground of non-filing of FSL report alongwith the chargesheet, and the main grievance of applicant was that the Special Judge had erroneously declined the relief of default bail to him.

The single-judge Bench of Justice Swarana Kanta Sharma placed reliance upon its judgment in  Arif Khan v. State (NCT of Delhi) whereby it has been held by that non-filing of FSL report alongwith the chargesheet does not fall within the ambit of Section 173(2) of Cr.P.C. so as to consider it as incomplete chargesheet and accordingly, no right of default bail is accrued in favour of the accused.

The Bench observed that though in case of Mohd Arbaz (supra), as well as in other subsequent cases filed assailing the orders of refusal of grant default bail, the accused persons have been enlarged on bail by the Apex Court, however the said relief however has been granted to the accused persons on the ground of pendency of larger issue i.e. whether chargesheet filed without an FSL report is incomplete chargesheet, before the Apex Court in batch of petitions.

“However, neither the decisions challenged before the Hon'ble Apex Court have been stayed, nor any general directions have been given to the Courts to release the accused persons on default bail if the chargesheet is filed without an FSL report”, the Bench held while dismissing the application.