CHANDER PRAKASH Vs. STATE OF HARYANA

JUDGEMENT

(1.) The petitioner is impugning order dtd. 4/5/2023 passed by learned Additional Sessions Judge, Sonipat, vide which his application under Sec. 167(2) Cr.P.C. for grant of default bail in case bearing FIR No.80 dtd. 1/11/2022 under Sec. 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, 'the NDPS Act') registered at Police Station GRP Sonipat, District GRP Ambala Cantt. was dismissed.

(2.) Learned counsel for the petitioner while, impugning order dtd. 4/5/2023, has vehemently contended that the petitioner was arrested on 1/11/2022 in the FIR in question. Thereafter, challan was presented by the investigating agency, but without the report of the Forensic Science Laboratory (hereinafter referred to as, 'FSL') on 13/4/2023. The case was then adjourned by the Court below for 1/5/2023 to await the receipt of the FSL report. Since the petitioner was arrested on 1/11/2022; the statutory period for completing investigation under the NDPS Act, i.e. 180 days was thus, to expire on 1/5/2023. However, as the FSL report had not been filed by the investigating agency even by 1/5/2023, the investigation could not be said to be complete. Therefore, in the circumstances, an indefeasible right stood accrued to the petitioner under Sec. 167(2) Cr.P.C. for being granted default bail. Thus, immediately thereafter, the petitioner moved an application before the trial Court under Sec. 167(2) Cr.P.C. on 2/5/2023. In support, learned counsel has placed reliance upon 'Ajit Singh @ Jeeta and another vs. State of Punjab' (CRR No.4659 of 2015 d/d 30/11/2018) to urge that challan without the FSL report would be an incomplete challan, entitling the accused to default bail under Sec. 167(2) of the NDPS Act.

(3.) It has been further vehemently argued that as per the mandate of Sec. 36-A(4) of NDPS Act, it was incumbent upon the Public Prosecutor to submit a report before the Court for seeking extension of time to file the FSL report and it would have been only then that the extension could have been granted by the Court concerned. However, the learned Court arbitrarily extended the period of investigation on the ground that the investigating agency had already presented the final report with a clarification that the FSL report had not been received. Learned counsel therefore, has asserted that the rationale behind the impugned order, on the face of it, is erroneous, as it is not the investigating agency but only the Public Prosecutor, who as per the provisions of Sec. 36-A(4) of the NDPS Act could have sought extension of time after presenting the report. Hence, the impugned order was not sustainable in the eyes of law. In support, reliance has also been placed on 'Uday Mohanlal Acharya vs. State of Maharashtra' (2001) 5 SCC 453 and 'Hitendra Vishnu Thakur vs. State of Maharashtra' (1994) 4 SCC 602.