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2014 DIGILAW 1354 (PNJ)

Ravinder @ Binder v. State of Haryana

2014-09-26

DAYA CHAUDHARY

body2014
JUDGMENT : Daya Chaudhary, J. The present petition has been filed under Section 439 Cr.P.C for grant of regular bail to the petitioner in case FIR No. 586 dated 20.10.2013 under Sections 15 of the NDPS Act registered at Police Station Sadar, Fatehabad, District Fatehabad. 2. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the case, whereas, there was no cogent evidence to connect him with the crime. He further submits that the petitioner has been implicated with mala fide intention of Sub Inspector Tarsem Singh on the basis of fabricated record as neither the land, from where the alleged recovery was made, belongs to the petitioner nor he was arrested at the spot. Learned counsel also submits that the petitioner was not found to be in conscious possession of the contraband and the mandatory provisions of NDPS Act have not been complied with. Learned counsel also submits that the petitioner is in custody since 21.11.2013 and the incomplete challan was presented on 22.12.2013 and the charge against the petitioner was framed on 06.01.2014 without obtaining any Chemical Examiner's Report. Learned counsel also submits that the petitioner is not a previous convict as no other case of NDPS Act is pending against him. 3. Learned State counsel, on instructions from ASI Bahadur Singh, has not disputed the factum of presentation of challan and framing of charge as the charge was framed on 06.01.2014, whereas, the report of Forensic Science Laboratory was dated 08.01.2014. Copy of the charge sheet as well as report of Forensic Science Laboratory have also been brought to the notice of this Court. 4. Heard the arguments of learned counsel for the parties and have also perused the contents of FIR as well as order passed by the lower Court. 5. The FIR in the present case was registered on 20.10.2013 on the basis of ruqa forwarded by Sub Inspector Tarsem Singh as he was on patrolling duty while going on Badopal-Dhanger Salamkhera road accompanied by other police officials in Government vehicle bearing No. HR-62/5265. However, on reaching near the Rajwaha bridge, a young boy was seen holding a plastic bag, who ran away to the fields after seeing the police. The accused was identified as Ravinder @ Binder by the police officials as he was known to him. Efforts were made to overpower him but he succeeded in running away. However, on reaching near the Rajwaha bridge, a young boy was seen holding a plastic bag, who ran away to the fields after seeing the police. The accused was identified as Ravinder @ Binder by the police officials as he was known to him. Efforts were made to overpower him but he succeeded in running away. Total 12 plastic bags were recovered while checking trenches and the same were supposedly be containing narcotic substance. Deputy Superintendent of Police was called on the spot and two samples each of 100 grams were taken out from all 12 bags. The remaining substance in all the 12 bags, on weighing, was found to be containing 19 kilograms 800 grams of poppy husk. The case property was taken into possession. The signatures of witnesses along with the signatures of Deputy Superintendent of Police were obtained. The accused-petitioner was arrested on 21.11.2013, whereas, the FIR was registered on 20.10.2013. The petitioner moved an application for grant of regular bail which was dismissed on 21.10.2014. The bail to the petitioner has been declined on the ground that he was involved in serious offence and recovery from him was of commercial quantity of narcotic substance. 6. Learned counsel for the petitioner was also directed to place on record the copy of challan, which is on record. 7. On perusal of final report, it is clear that the petitioner was arrested on 21.11.2013 and the challan was presented on 22.12.2013. The challan was presented without obtaining any Chemical Examiner's Report. Subsequently, the charge was also framed against the petitioner on 06.01.2014. It has also been mentioned in the challan that no investigation is remaining but at the time of filing challan, the Chemical Examiner's Report was not received by the Investigating Officer. The issue, which is necessary to be determined is, as to whether the trial Court can frame charge on the basis of incomplete challan as the investigation can be considered complete in the absence of Chemical Examiner's Report or the report of Forensic Science Laboratory or Narco Analysis. The term 'police report' has been defined in Clause (r)' of Section 2 of the Cr.P.C., which is as under :- "Police report means a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173" 8. The term 'police report' has been defined in Clause (r)' of Section 2 of the Cr.P.C., which is as under :- "Police report means a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173" 8. Sub-section (2) of Section 173 provides that as soon as investigation under Chapter XII of the Code is completed, the officer incharge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. Sub-section (2) thus envisages the dual process of the completion of the investigation and the forwarding of the police report to the Magistrate for taking cognizance of the offence. 9. The investigation has been defined in Section 2(h) of the Code, which is as under :- " 'Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf." 10. Section 173 of the Cr.P.C which is contained in Chapter XII of the Code under the heading "Information to the police and their power to investigate" is as follows - "173. Report of police officer on completion of investigation. - (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating - (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Section 170. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given. (3) .... (4) .... (5) .... (6) .... (7) .... (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given. (3) .... (4) .... (5) .... (6) .... (7) .... (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Subsection (2)." 11. Section 173 Cr.P.C in itself states "Report of police officer on completion of investigation". As per Section 173(1) Cr.P.C., every investigation under this Chapter shall be completed without unnecessary delay. Section 173(2)(1) states that as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report as prescribed by the State Government. The words "as soon as it is completed" clearly states that the final report is to be submitted before the Magistrate on its completion. 12. Section 173(i) of the Cr.P.C clearly shows that the investigation is to be completed without any unnecessary delay and as per provisions contained under Section 173(ii) of the Cr.P.C, the challan is to be filed on completion of investigation only and not prior to that. Thus, it is clear that the trial Court is to accept the challan only on completion of investigation and by considering that all allegations levelled in the FIR have been investigated completely and charge can be framed only after considering the complete investigation report. Meaning thereby, that in case, any report of Forensic Science Laboratory or Narco Analysis or any other document, which is necessary for adjudication and the same has not been received so far, then the Court is to proceed further after receiving said report. One thing is clear that the question of framing charge comes only when the complete investigation report is with the trial Court. One thing is clear that the question of framing charge comes only when the complete investigation report is with the trial Court. 13. In the present case, the charge has been framed against the petitioner without obtaining Chemical Examiner's Report and in the absence of Chemical Examiner's Report in case of NDPS Act, it cannot be said as to whether the substance found in the bags recovered from the petitioner was a narcotic substance or not. In the absence of CFSL report, the trial Court cannot take cognizance of the offence and in the absence of Chemical Analysis Report, the charge sheet/challan cannot be said to be completed. Failure to file complete charge-sheet within a prescribed period confers on the accused right to be released on bail and the court is not competent to take cognizance of the offence on incomplete charge-sheet. Charge sheet is not complete unless it is accompanied by requisites contemplated under Section 173(5) of the Code. 14. In view of the above facts, it is clear that the charge cannot be framed on the basis of incomplete report and the final report, without having any FSL, narco-analysis and Chemical Examiners' Report is incomplete. The Court is to proceed for framing of charge only after receiving the same. 15. In the present case, the incomplete challan has been presented without having any Chemical Examiner's Report and even the charges were framed as the Chemical Examiner's Report is of subsequent date. The petitioner is in custody since 21.11.2013. 16. The trial Court is directed to send its report explaining therein as to how the charges have been framed without having any Chemical Examiner's Report as the Chemical Examiner's Report is of subsequent date of the order of framing of charge. The necessary explanation be submitted before this Court within a period of two weeks from the date of receipt of copy of this Order. Adjourned to 30.10.2014. 17. Meanwhile, the petitioner is directed to be released on bail on his furnishing bail/surety bonds to the satisfaction of the trial Court. 18. The guidelines issued in this case be circulated to all the District and Sessions Judge, Punjab, Haryana and U.T for meticulous compliance, who in turn, will circulate to all the Judicial Officers working under them and non-compliance of these guidelines would amount to contemptuous act of the concerned officer(s). 19. 18. The guidelines issued in this case be circulated to all the District and Sessions Judge, Punjab, Haryana and U.T for meticulous compliance, who in turn, will circulate to all the Judicial Officers working under them and non-compliance of these guidelines would amount to contemptuous act of the concerned officer(s). 19. A copy of this order be given dasti to learned State counsels, who are representing the respective State in the Court, under the signatures of Court Secretary.