TMI Blog2016 (4) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 167 (2) Cr.P.C. when the cognizance had been taken by the trial Court without having obtained report of chemical examiner, observing that a report not accompanied by chemical examiner report would be a no charge-sheet. The Andhra Pradesh High Court in Matchumari China Venkatareddy and others Vs. State of AP, [ 1993 (3) TMI 391 - ANDHRA PRADESH HIGH COURT] , has held that filing of charge sheet under Section 173 (2) Cr.P.C. was not complete unless it is accompanied by the papers contemplated under Section 173 (5) Cr.P.C. The Bombay High Court in Sunil Vasantrao Phulbande and another Vs. State of Maharashtra, [ 2002 (2) TMI 1362 - BOMBAY HIGH COURT] has granted benefit of Section 167 (2) Cr.P.C. to accused holding that incomplete charge sheet cannot be treated as police report at all as contemplated under Section 173 (2) Cr.P.C. Following the judgment of Apex Court in Satya Narain Musadi s case [ 1979 (9) TMI 197 - SUPREME COURT] which has been followed by the High Court of Andhra Pradesh in Matchumari China s case, and by Calcutta High Court in Raghubirsaran Jain and another Vs. State and another, [ 1995 (6) TMI 203 - CALCUTTA HIGH COURT ], it is opined that the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S Act on 30.3.2016. The petitioners had opted to file an application for the grant of bail on 30.1.2016 on the ground that incomplete challan without Chemical Examiner report will not be a legal report under Section 173 (2) Cr.P.C. The application was dismissed vide order dated 3.2.2016 holding that the petitioners will not be entitled to be released under Section 167 (2) Cr.P.C., relying upon the judgment of the Apex Court in Narendra Kumar Amin Vs.CBI and others, Crl. Appeal No.94 of 2015, (arising out of SLP (Crl.) No.9599 of 2013) decided on 15.1.2015. This revision petition challenging the order dated 3.2.2016 was filed on 20.2.2016. The circumstances of the above said case indicate that the prosecution agency had not filed any application under Section 36-A (4) of the NDPS Act, to defeat the indefeasible right accrued to the petitioner under Statute prior to the expiry of the period of 180 days i.e. before 29.1.2016. The short question which is required to be determined in the present case is whether failure on the part of the prosecution agency in filing application under Section 36-A (4) of the NDPS Act to defeat the right of accused alleged to have been found in possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 167 (2) Cr.P.C. on January 30, 2016. The report of chemical examiner indicating the contents of the contraband had not been received even by that date. It is not out of place to mention here that the report had not been filed in the Court even till the date, revision petition was filed before this Court. The revision petition was filed before this Court on February 20, 2016. Investigating Officer was directed to produce the entire record before this Court. A perusal of the record indicates that report of chemical examiner was received on March 2, 2016 and now the charges have been framed by the trial Court on March 30, 2016. An indefeasible right had certainly accrued to the petitioners on January 29, 2016 on expiry of the period of challan as the most important document i.e. the report of chemical examiner was not part of the report under Section 173 (2) Cr.P.C. and the cognizance could not have been taken on the day of presentation of challan under Section 18 of the NDPS Act. The petitioners had exercised their right for release on bail on January 30, 2016 when the Court did not have any material before it to show that offence under Section 18 of the NDPS Act was prima facie m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 173 (5) and that the whole of it is submitted as a report to the Court and that it follows that the Court can look at the report in prescribed form, along with the accompaniments, for taking cognizance of the offence. It has been laid down by the Apex Court that charge-sheet is one which is accompanied by the copies thereof to be served on the accused and that mere filing of a police report under Section 173 (2) Cr.P.C. without its accompaniments under Section 173 (5) Cr.P.C. is not a police report at all. A Division Bench of this Court in Varinder Singh Sandhu Vs. State of Punjab, CRR No. 54 of 2015, decided on November 18, 2015, has held that where an application for extension of time is filed by the PP before the expiry of 180 days for report of FSL having not been received, the accused would not be entitled to the benefit of Section 167 (2) Cr.P.C. This Court in Ravinder @ Binder Vs. State of Haryana, 2015 (4) RCR (Crl.) 441 has granted the default bail under Section 167 (2) Cr.P.C. when the cognizance had been taken by the trial Court without having obtained report of chemical examiner, observing that a report not accompanied by chemical examiner report would be a no c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort is the basis for deciding whether substance which is seized during raid is Ganja or not, which would determine whether provisions of the Narcotic Drugs and Psychotropic Substances Act are attracted or not. The Magistrate in such situation undoubtedly cannot proceed to take cognizance of the offence for want of complete chargesheet/ report and, therefore, in the present case, the charge-sheet/report which is submitted by the Police in the Court on 4-8-2001 cannot be said to be a chargesheet/ report as contemplated under Section 173(5) of the Code. 14. There is another dimension to the issue in question. In the given set of circumstances, Police may submit a charge-sheet in the Court though incomplete, but within a stipulated period as contemplated under Section 167(2) of the Code, i.e. sixty days or ninety days, if all the relevant documents are filed in the Court as contemplated under Section 173(5) of the Code, in that event, the accused cannot seek bail in view of provisions of Section 167(2) of the Code. However, in the instant case, Chemical Analyser's report was filed in the Court beyond the period of ninety days, i.e. on 9.11.2001 and, therefore, prosecution in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is not out of place to observe here that the judgment of Narendra Kumar Amin s case (supra) relied upon by the trial Court is not applicable to the facts of the present case. In Narendra Kumar Amin s case (supra), default bail under Section 167 (2) Cr.P.C. had been declined by the CBI Court as well as by the Gujarat High Court, as the challan had been presented on the last date of expiry of 90 days. In the said case, the prosecution had sought extension of detention for custody prior to the expiry of 90 days and period of remand had been extended beyond the period of 90 days. In the said case, the period of remand was extended till July 5, 2013 and the challan had been presented on July 3, 2013. The Apex Court had held that filing of the police report as required under Section 173 (2) Cr.P.C. was within the period of 90 days. So far as the material which forms part of the report under Section 173 (2) Cr.P.C. is concerned, the High Court had observed in para 10.1 of its judgment that the contents of the charge sheet set in its prefatory details, showed the revelations in the investigation. The Investigating Officer mentioned the role played by the accused persons and he opined o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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