NDPS Accused Entitled To Bail If Charge-Sheet Filed Without FSL Report & Tended Later Via Simple Letter: Bombay High Court

"In matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for 'default bail' or an oral application is of no consequence," Bombay High Court (Nagpur Bench), in a significant ruling dated, held that an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) is entitled to bail if the prosecution files a charge-sheet without the Forensic Science Laboratory (FSL) report and subsequently submits the report through a simple letter instead of a supplementary charge-sheet.

A single-judge bench of Justice M.M. Nerlikar observed that such a "strange procedure" adopted by the trial court and the investigating agency violates the procedural safeguards of the accused.

The applicant, Ashish Prakash Walke, was arrested in October 2025 following the seizure of 160 grams of Mephedrone (MD). The investigation culminated in a charge-sheet filed in January 2026, which notably excluded the Chemical Analysis report. The applicant sought bail on the grounds that an incomplete charge-sheet filed to defeat the right to default bail under Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) or Section 167(2) of the CrPC entitles the accused to release.

The primary questions before the court were whether an application for regular bail under Section 483 BNSS (Section 439 CrPC) is maintainable for seeking default bail, and whether a charge-sheet filed without an FSL report in an NDPS case can be considered a "report" under Section 173 CrPC to curtail the right to statutory bail.

Maintainability Of Default Bail Plea Under Section 483 BNSS

The State argued that the parameters for default bail and regular bail are distinct, and therefore, an application filed under Section 483 BNSS (regular bail) could not be used to claim the indefeasible right to default bail. The prosecution contended that if the accused seeks default bail, he must specifically invoke the provisions of Section 187(3) BNSS or Section 167(2) CrPC rather than the High Court’s special bail powers.

However, the Court rejected this technical objection, emphasizing that the right to default bail is an extension of the fundamental right to liberty under Article 21 of the Constitution of India. Relying on the Supreme Court’s decision in Rakesh Kumar Paul v. State of Assam, the Court noted that the judiciary must lean in favor of personal liberty and not let technicalities obstruct statutory rights.

Court Must Not Be Too Technical In Matters Of Personal Liberty

The Court held that even if a bail application is preferred under the general bail provisions, it remains maintainable for claiming default bail. The Bench clarified that there is no bar preventing the High Court or the Court of Sessions from exercising their special powers under Section 483 BNSS to grant relief when the statutory period for investigation has expired without a proper report.

"The Court concerned must deal with such an application by considering the statutory requirements, namely, whether the statutory period for filing a charge-sheet has expired, and whether the accused is prepared to and does furnish bail," the Court observed while citing the Delhi High Court's view in Subhash Bahadur v. State.

Filing FSL Report Without Supplementary Charge-Sheet Is 'Strange Procedure'

Turning to the merits of the NDPS investigation, the Court found that the Chemical Analysis report was available with the police on December 16, 2025, yet the charge-sheet was filed on January 21, 2026, without including it. Most strikingly, the report was eventually placed before the Trial Court nearly two months later via a simple communication from a Police Inspector rather than a formal supplementary charge-sheet.

The Court categorized this as a "strange procedure" and noted that the Trial Court ought not to have accepted the report in such a casual manner. It observed that it was the duty of the investigating officer to tender the report through the prescribed legal procedure of a supplementary charge-sheet if it was not part of the original filing.

FSL Report Not Part And Parcel Of The Charge-Sheet Entitles Accused To Bail

The Bench highlighted that the larger legal question—whether a charge-sheet without an FSL report in NDPS cases is "incomplete"—is currently pending before a Larger Bench of the Supreme Court in Mohd. Arbaz v. State of NCT of Delhi. The Court noted that the Apex Court has granted interim bail to several petitioners while the issue remains under consideration.

Given the specific facts of the case, where the prosecution possessed the report but failed to include it in the charge-sheet and then bypassed procedural norms to submit it later, the Court found the applicant entitled to bail. The Bench held that the rigors of Section 37 of the NDPS Act, which usually make bail difficult in commercial quantity cases, would not override the procedural lapse regarding the FSL report in this context.

"The Chemical Analysis report was simply tendered across the bar without filing supplementary charge-sheet... this amounts to following of strange procedure by the Special Court under the NDPS Act."

In its concluding remarks, the High Court allowed the application, directing the release of the applicant on a personal bond of Rs. 50,000. The Court imposed stringent conditions, including a prohibition on committing similar offenses and a requirement to attend every date of the trial, noting that any default would entitle the State to seek cancellation of the bail.

Date of Decision: April 20, 2026