NDPS | Charge Sheet Filed Without FSL Report in NDPS Case is Incomplete; Accused Entitled to Statutory Bail: Calcutta High Court

Calcutta High Court granted statutory bail to the petitioner in a case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court, following an earlier Division Bench ruling, held that the absence of a Forensic Science Laboratory (FSL) report in the charge sheet rendered it incomplete, entitling the petitioner to statutory bail under Section 167(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.).

The petitioner, Idul Mia, was arrested on January 31, 2024, and charged under Sections 21C, 25, 27A, and 29 of the NDPS Act for offenses involving narcotics. The police filed a charge sheet on the 177th day of his custody, within the 180-day period prescribed under Section 36A(4) of the NDPS Act. However, the charge sheet did not include the FSL report confirming the presence of narcotics in the seized material. The petitioner applied for statutory bail on the 183rd day, arguing that the charge sheet was incomplete without the FSL report. The trial court denied the bail application, prompting the petitioner to approach the High Court.

The primary legal issue was whether a charge sheet filed within 180 days in an NDPS case, but without the FSL report, could be considered incomplete, thereby entitling the accused to statutory bail under Section 167(2) Cr.P.C.

Statutory Bail Under Section 167(2) Cr.P.C. and Section 36A(4) of the NDPS Act

Section 167(2) Cr.P.C. prescribes that an accused must be granted bail if the investigating agency fails to complete the investigation and file a charge sheet within the prescribed period—90 days for most offenses, extended to 180 days for NDPS cases involving commercial quantities under Section 36A(4) of the NDPS Act.

The petitioner argued that since the charge sheet did not include the FSL report, it was incomplete, and he was entitled to statutory bail after the 180-day period lapsed.

The Court acknowledged that in NDPS cases, the FSL report is crucial to establishing whether the seized substance is a narcotic drug or psychotropic substance, making it an integral part of the charge sheet.

"The CFSL/Laboratory Report becomes an essential and integral part of the investigation for establishing the charges under the NDPS Act. The Chemical Examination Report therefore becomes the most vital piece of evidence which is required to be made part of the charge-sheet," the Court noted, citing Rakesh Sha v. State of West Bengal (2023 SCC OnLine Cal 2463).

The Court relied heavily on the Division Bench decision in Rakesh Sha v. State of West Bengal, where it was held that a charge sheet submitted within 180 days without the FSL report is incomplete. The absence of the FSL report means the investigation is not fully complete, and the accused is entitled to statutory bail.

The Court acknowledged that the issue of whether a charge sheet filed without the FSL report is valid is currently pending before the Supreme Court in Mohd. Arbaz & Ors. v. State of NCT of Delhi (SLP (Crl.) No(s). 8164-8166/2021). However, it emphasized that "judicial discipline requires adherence to the ruling of the Division Bench of the Calcutta High Court" until the Supreme Court decides the matter.

The Court, following the precedent set by Rakesh Sha, ruled that the charge sheet filed against the petitioner was incomplete due to the absence of the FSL report, and as such, the petitioner became entitled to statutory bail once 180 days had passed.

"Upon expiry of 180 days, the petitioner became entitled to statutory bail, and the learned Trial Court erred in not extending that privilege to the petitioner," the Court held.

The Court granted bail to the petitioner, directing his release upon furnishing a bond of Rs. 25,000 with two sureties, subject to the following conditions:

Date of Decision: October 8, 2024

Idul Mia v. State of West Bengal