Filing Of Incomplete Charge Sheet Is Not A Ground For Statutory Or Default Bail: Delhi High Court

The Delhi High Court while recently dismissing the bail application filed under Section 167(2) Cr.P.C. read with Section 364(A) of  Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) has held that filing of incomplete charge sheet cannot be a ground for grant of statutory or default bail. 

“The Learned ?Trial Co?ur?t has rightly dismissed petitioner’s bail application while holding that though the FSL report has been filed after filing of bail application and after completion of 180 days of investigation, but the charge-sheet cannot be held to be incomplete because of the pendency of FSL report over voice sample, as preparation of report on voice sample is not in the hands of IO.”, Single Bench of Justice Suresh Kumar Kait noted. 

In the present matter, an FIR was filed against the petitioner (accused) for offences under Sections 21/29/61/85 of the NDPS Act & on 11.03.2020, he was formally arrested. The charge sheet u/s 173(2) of CrPC,1973 was filed but the petitioner’s name was not there in the charge sheet. The Special Court vide order dated 20.03.2020 directed the petitioner to give his voice sample for getting it matched with the intercepted call recordings available with the prosecution. A supplementary charge sheet was filed against the petitioner on 26.08.2019 without the Central Forensic Science Laboratory (CFSL) report of the voice samples. The prosecution did not seek an extension of time for completion of investigation in terms of Section 36 A(4) of the NDPS Act. 

Upon expiry of statutory period of 180 days for completion of investigation and filing of complete charge sheet on 10.09.2020, the petitioner on 23.09.2020 filed an application seeking bail under Section 167(2) Cr.P.C. read with Section 364(A) of NDPS Act. 

The Trial Court vide order dated 05.10.2020, dismissed the petitioner’s application & observed that, 

“?Heard. The main ground of statu??tory or default bail u/s 167 (2) Cr.P.C. r/w section 36A (4) NDPS Act is that the incomplete charge-sheet was filed. The accused is alleged to be the main member of syndicate whose mobile was under interception. After the arrest of present accused, an application dated 20.03.2020 was filed by the IO to take the voice sample of the accused Mehboob Rehman, and vide order dated 20.03.2020 this court allowed the said application pursuant to which accused voice samples were recorded and report over the voice samples was prepared on 09.09.2020 and filed before this court on 28.09.2020 by the IO. Though the FSL report is found to be filed after filing of this application and completion of 180 days of investigation, the charge-sheet cannot be held to be incomplete because of the pendency of FSL report over voice sample as preparation of report on voice sample is not in the hands of IO. The judgments as relied on by Ld.Addl. PP for the State is squarely applicable in the present case. Accordingly, the present applica?ion had no merit and hence, denied. ?”

Thereafter, the petitioner approached this Court against the impugned order dated 05.10.2020.

The petitioner’s Counsel relied on Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer, NCB and Anr. (2009) 17 SCC 631 in which it was has held that provisions of Section 36 A(4) NDPS warrant strict compliance and since investigation in this case was not completed in time and no extension in ?terms of aforesaid provisions of la? ?as ob?ained, petitioners de?ten?tion in jail is illegal. Further, reference was also made to Nitin Nagpal Vs. State 2006 SCC OnLine Del 704 wherein it is held that if the Chemical Anal?ser?s repor?t is ?the fo?unda?tion ?of a case, in t?he absence thereof, cognizance cannot be taken and therefore, non filing of FSL report within the statutory period mandated, gives indefeasible right to the petitioner under Section 167(2) of the Code.

On the other hand, the APP for the State while opposing the petition submitted that charge sheet was first filed on 13.03.2020 & a supplementary charge sheet was filed on 25.08.2020 which was well within the statutory time period. 

“The CFSL report regarding voice samples was received on 26.09.2020 and the same was filed before the trial court on 28.09.2020. Learned Additional Public Prosecutor submitted that obtaining CFSL report is beyond the reach of Investigating Officer and the purpose of filing supplementary charge sheet is to corroborate the evidence with the investigation and is a matter of trial and cannot be gone into at this stage.”, APP further argued. 

Thus, the Court while relying upon the ratio laid down in Kishan Lal Vs. State 1989 SCC OnLine Del 348 dismissed the bail application & observed that, 

“It cannot be lost sight of the fact that immediately after pe?i?ioner?s arres? on 13.03.2020, prosec??ion filed an application seeking permission to obtain voice sample of petitioner/accused which was allowed on 20.03.2020 and on the same day voice samples were taken, but thereafter, because of lockdown due to covid pandemic, report could be obtained only on 26.09.2020.”

Case Title: Mehabub Rehman @ Empha V. State Through: Spl Cell, Delhi Police

Law Point/Statute Involved: Sections 21/29/61/85 of the NDPS Act & Section 167(2) of CrPC,1973