HIMMAT SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner, alongwith his wife and one Tapsu, was arrested in connection with an FIR lodged against them on 14-3-94 at Police Station, Pratabgarh, pertaining to the offences under Sections 8/12, 8/18, 25, 29, 8-A read with Sections 18 and 25A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'the Act'). After his arrest on 19-3-94, on his information and at his instance, two Jericans of five litres each, containing 'acetic Anhydride', which is one of the components in the manufacture of brown sugar, and some other materials were recovered from the possession of the petitioner in the presence of the Motbir witnesses. According to the prosecution, this acetic Anhydride, which is used for the manufacture of brown sugar, was supplied by the petitioner to the persons, including co-accused Tapsu, for manufacturing brown sugar. The police, after necessary investigation, submitted the charge-sheet against the accused under Section 173(2) Cr. P.C. The learned Magistrate took cognizance and proceeded with the trial. The petitioner moved an application under Section 437 Cr. P.C. for the grant of bail before the learned Sessions Judge, Pratabgarh, who, by his order dated 20-7-94, dismissed the bail application filed by the petitioner by holding that at this stage it cannot he said that the petitioner is not guilty for the offence and, therefore, he cannot be released on bail in view of the provisions of Section 37 of the NDPS Act. It is against this order, rejecting the bail application filed by the petitioner, that the petitioner has moved this bail application and prayed for his release on bail during the pendency of the trial.

(2.) It is contended by the learned counsel for the petitioner that the police, while submitting the charge-sheet under Section 173(2) Cr. P.C., has not filed the FSL report and in the absence of the FSL report, it cannot be said that the articles recovered from the petitioner, can be covered under the provisions of the Act and in the absence of the FSL report, the charge-sheet submitted by the police cannot be said to be a 'charge-sheet' as envisaged under Section 173(2) Cr. P.C. and as such, as per the provisions of Section 167(2), the petitioner is entitled to be released on bail. The learned Public Prosecutor, on the other hand, has submitted that the charge-sheet submitted by the police against the petitioner is a complete one and an additional document can he filed under Section 173(8) Cr. P.C. and as the charge-sheet has been submitted against the accused-petitioner, the provisions of Section 167(2) Cr. P.C. are not applicable in the case and the petitioner is not entitled to be released on bail.

(3.) I have considered the submission made by the learned counsel for the parties.