LAWS(DLH)-1989-9-15

KISHAN LAL Vs. STATE

Decided On September 22, 1989
KISHAN LAL Appellant
V/S
STATE OF DELHI Respondents

JUDGEMENT

(1.) The settled position in law is that it is open to Magistrate to take cognizance of offences upon a police report submitted under Section 173(2) ot the Code of Criminal Procedure even when itdoes not include the report of experts. The question is sought to be re-agitatd in the two connected petitions. The pleas urged betore us in Cr. Writ No 622/88 filed by Kishan Lal and Cr. M.(M) No. 1 132/88 tiled by Gurdev Siagh are that the investigation tor the offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (lor nhort the NDPS Act) cannot be held to becomplete without obtaining the opinion of the expert and, therefore, the cognizance of the said offences under Section 190(l)(b) of the Code of Criminal Procedure (for short the Code) is not permissible.

(2.) The petitioners in two different cases were arrested tor offences under various Sections of the NDPS Act on two different dates. They were refused bail and remanded to judicial custody. The report under Section 173(2) of the Code in Gurdev Singh's case was filed on 90th day of his arrest and in the case of Kishan Lal, befort the expiry of 90 days. Acting on those reports, the Magistrate concerned took cognizance of the offences and remanded the accused to judicial custody. The admitted fact is that opinion of the Central Forensic Science Laboratory by then bad not been received by the Investigating Officer. It is the further admitted position that during the pendency of these two petitions before us, the reports of the Government Expert in the respective cases were received and filed before the courts concerned. Those reports show that the samples from the seized commodity in the case of Gurdev Singh were of "Poppy Straw" and in the case of Kishan Lal, "Charas", both falling within the ambit of the NDPS Act.

(3.) Gurdev Singh filed a petition (Cr.M(M) No. 1132/88) under Section 439 of the Code seeking bail on the ground that cognizance taken by the Magistrate on an incomplete report was vitiated and, therefore, as th& investigation was pending, he was entitled as a matter of right to the grant of bail after 90 days of his arrest under Section 167(21 of the Code. The) learned Single Judge, before whom the petition was listed, was of the considered opinion that the question raised was of considerable importance and, thus referred the matter to a larger bench.