The Punjab and Haryana High Court in the case Mukesh Pal @ Makhan Versus State of Haryana observed and has reiterated that the report of Forensic Science Lab forms the foundation of prosecution case in the proceedings of NDPS and in cases the same is not there the entire case of prosecution falls to the ground.
The bench headed by Justice Gurvinder Singh Gill in a petition seeking default bail for want of FSL report observed that a case under the NDPS Act can only survive in case where the prosecution is able for establishing that the article recovered is indeed a contraband and the same can only be established on the basis of its chemical examination, which is being normally and has got done through FSL established by the Government.
In the present case, the bench drew a contrast with cases of injury, hurt or murder under Indian Penal Code, 1860, wherein it has been stated that even the ocular version coupled with some medical evidence or from some other circumstantial evidence which may suffice to bring home the guilt of the accused.
It has also been noted by the bench that the Supreme Court as well as a full Bench of the High Court have held that a challan even if it is not accompanied by a report of the Chemical Examiner or that of the expert cannot be said to be incomplete. However, it has been highlighted that those cases did not pertain to an offence stated under the NDPS Act.
It has been observed by the court that the controversy has been referred to a Division Bench and is still subjudice, in view of several conflicting judgments. In the meantime, the several co-ordinate Benches have granted bail to the accused.
Further, the relief has been granted by the High Court to the instant petitioner. Facts of the Case:
An FIR was registered against the petitioner under Sections 21(b)/27-A/29/61/85 of the NDPS Act, wherein it was alleged that he was found in possession of 15 grams of ‘Heroin’. After investigation by the police, a report under Section 173 of Code of Criminal Procedure was being presented before the trial Court but the report was not accompanied by the report of FSL.
The bench observed that 60 days period was mandatary for filling of challan in cases of recovery of non-commercial quantity of contraband and as per provisions of the NDPS Act reading with Section 167 Cr.P.C. expired on 10.4.2022 and the FSL report even by the said date was not filled by the prosecution. As a result of which an application was moved by the petitioner under Section 167(2) Cr.P.C. for bail on the ground that the challan could not be said to be complete in absence of FSL report. The court dismissed the said application and the instant petition.
Accordingly, the court after considering the submissions observed and has extended that the concession of bail in terms of Section 167(2) code of Criminal Procedure to the petitioner, the court while also keeping in view of the fact that the petitioner has been behind bars since the last more than a period
of 9 months.
