Manas Krishna T.K. v. State

M.S. Sonak, J.:— Heard Ms. Caroline Colaco with Mr. K. Poulekar for the Applicant, Mr. D. Pangam, learned Advocate General with Mr. Neehal Vernekar, Additional Government Advocate for the State, Mr. S. G. Bhobe, learned Public Prosecutor with Mr. G. Nagvenkar, Additional Public Prosecutor for the State, Mr. P. Faldessai, Assistant Solicitor General of India, and Mr. Shivraj Gaonkar and Mr. Anil Lalla, learned counsel who appeared in pursuance of the notice issued to the members of the Bar.

2. The main issue which falls for determination in this reference is whether, in a case under the NDPS Act, the investigation can be said to be complete within the period prescribed under Section 167 (2) of the Criminal Procedure Code (Cr.PC), when a police report under Section 173 (2) is filed before the Special Court without any CA/FSL report along. If, based upon such a police report, an investigation is held as incomplete, then, the accused will be entitled to default bail. However, if the investigation is held as complete, no question of default bail would arise.

3. This reference arose on the account of the following:—

(a) On 07.01.2020, FIR No. 5/2020 was registered at the Anjuna Police Station against the applicant/accused alleging commission of an offense under section 20 (C) of the NDPS Act, 1985. The FIR alleged that the accused was found in possession of a commercial quantity (0.5 gms) of L.S.D. contraband under the NDPS Act. The accused was arrested on the same date i.e. 07.01.2020. The accused's bail application No. 76/2020 was rejected by the Special Court 29.06.2020.

(b) The Investigating Officer (IO) filed a report under Section 173 (2) Cr.PC (Charge-sheet) before the Special Court on 04.07.2020. This was the 179 day since the arrest of the first remand. This means that the charge-sheet was filed within the 180 days time limit provided in Section 167 (2) Cr.PC r/w Section 36(A)(4) of the Narcotic Drugs & Psychotropic Substances Act (NDPS Act).

(c) Along with the charge-sheet, the IO also filed before the Special Court on 04.07.2020 itself several documents in terms of Section 173 (5) of Cr.PC. This included a Panchanama in which it was recorded that a field test was conducted at the spot where the accused was apprehended and that the results suggested that the substance recovered from the shoulder bag carried by the accused, was indeed L.S.D. However, the IO, along with the charge sheet, did not file any Chemical Analyser (CA)/FSL report concerning the sample attached and sent to the laboratory. Such CA/FSL report was ultimately filed beyond the period prescribed in section 167(2) Cr.PC confirming that the substance recovered was indeed L.S.D.

(d) The accused had applied for bail before this Court on 07.07.2020 but withdrew this application on 07.08.2020 with liberty to apply before the Special Court. Such bail application was filed on 22.09.2020 but was rejected on 21.11.2020. The accused then applied for bail before this Court vide Criminal Misc. Application (Bail) (Filing) no. 88 of 2021 (the present application).

(e) Mr. Poulekar relied on the following set of decisions which according to him, support the aforesaid position urged by him : (i) Sunil Vasantrao Phulbande v. State of Maharashtra, (2002) 3 Mah LJ 689, (ii) Punjaram v. State Of Maharashtra, 2005 Cri LJ 4658, (iii) Ranjeet Manohar Machrekar v. The State of Maharashtra, Criminal Bail Application No. 509/2014 (Bombay), (iv) Manik Sahebrao Chaugule v. State of Maharashtra, Criminal Bail Application No. 241/2017 (Bombay), (v) Seema Raju Panchariya v. The State of Maharashtra, Criminal Bail Application No. 65/2018 (Aurangabad), (vi) Sagar Parshuram Joshi v. The State of Maharashtra, Bail Application (ST) No. 4761/2020 (Bombay).

(f) On the other hand, the Learned Public Prosecutor (PP) pointed out to the Learned Single Judge, a set of judgments that might invite a finding that the decisions relied on by Mr. Poulekar are either ‘per incuriam’ or at any rate, in direct conflict. The decisions relied on by the learned Public Prosecutor included the following : (i) Balaji Vasantrao Suwarnkar v. State Of Maharashtra ., 1992 Mah LJ 159, (ii) State of Maharashtra v. Sharadchandra Vinayak Dongre, (1995) 1 SCC 42, (iii) Babu s/o Rakhmanji Khamkar v. The State of Maharashtra, (1995) 4 Bom CR 335, (iv) Rohini Mahavir Godse v. State of Maharashtra, (1996) 2 Mah LJ 492, (v) Rafael Palafox Garcia v. Union of India, 2008 All M.R. (Cri) 3031, (vi) Sheikh Shabbir s/o Mohd Shafi v. State of Maharashtra, Criminal Application no. 143/2011 (Nagpur Bench), (vii) Srihari Mahadu Valse v. The State of Maharashtra, Criminal Bail Application No. 3284/2018, (viii) Dheeraj Wadhawan v. C.B.I. - 2020 SCC OnLine Bom 9461.

(g) Confronted with the rival sets of judgments, the Learned Single Judge, by her order dated 07.07.2021 opined that the following questions arise and can be more advantageously considered by the Division Bench of this Court:—

i. Whether the presentation of a report under Section 173(2) Cr.PC. by the police without the report of Chemical Analyser/FSL amounts to incomplete challan and in the absence of any extension of time under Section 36-A(4) of the NDPS Act, whether the accused is entitled to bail under Section 167(2) Cr.P.C.?

ii. Whether, in a charge-sheet under NDPS Act, accompanied by a field testing report which is a part of the record, can be labelled as an incomplete report, simply because it is not accompanied by a report of Chemical Analyser/FSL?

iii. What is the legal efficacy of “Drug Law Enforcement, Field Officers' Handbook” issued by the Narcotics Control Bureau, Ministry of Home Affairs, Government of India?

(h) Based on the above opinion, the Registrar (Judicial-I) at Bombay, vide letter dated 22.07.2021 informed the Registrar (Judicial) at Goa that the Hon'ble the Chief Justice has been pleased to approve the constitution of Division Bench for answering the questions raised by the Hon'ble Court (Coram : M. S. Jawalkar, J.) in Criminal Miscellaneous Application (Bail) (Filing) No. 88/2021 and to place the same before this Division Bench for consideration.

4. By our Order dated, 26.07.2021, we requested the Learned Advocate General to appear in this matter and further directed the Registry to publish a notice informing the Members of the Bar, that they may, should they so desire, address the Court in this matter.

5. Ms. Collasso, Mr. Poulekar, Mr. Lalla, and Mr. Gaonkar on behalf of the accused submitted that the decisions relied upon by Mr. Poulekar before the Learned Single Judge reflected the correct position in law and should therefore be endorsed in preference to the decisions relied upon by the prosecution. They adopt entirely the reasoning reflected in the said decisions. They submit that the right to default bail in terms of Section 167(2) is indefeasible. This right flows from Article 21 of the Constitution of India as was held in M. Ravindran v. Intelligence Officer, Directorate Of Revenue Intelligence ., Directorate of Revenue Intelligence, (2021) 2 SCC 485. They submit that Section 167 of Cr.PC does not refer to the filing of a police report under Section 173 but only provides that an accused will be entitled to a default bail when an investigation is not completed within the period prescribed with Section 167(2) of Cr.PC.

6. The learned Counsel for the accused submitted that cases under the NDPS Act have to be treated differently from the cases under the Penal Code, 1860 (IPC) or other enactments where CA/FSL report may not always form the fulcrum of the prosecution case. They submitted that unless there is evidence that the substance recovered from the accused is a Narcotic Drug or a Psychotropic substance, no prosecution could even lie under the NDPS Act. They submitted that the investigation can never be said to be completed in the absence of any CA/FSL report. They submitted that based on such an incomplete charge sheet the accused's indefeasible right to default bail cannot be frustrated or be denied. They submit that even under Section 173(2)(d) the police report is required to state whether any offense appears to have been committed and, if so, by whom. They submit in an NDPS case a police officer cannot form an opinion whether an offense appears to have been committed and if so by whom in the absence of the foundational fact i.e. whether the material seized from the accused was a narcotic drug or psychotropic substance. They submit that the field-testing report is most unreliable and for the formation of such opinion, the minimum is a CA/FSL report in the absence of which, the investigation cannot be said to have been completed. They refer to Section 293 of Cr. PC to point out that special status is accorded to a CA/FSL report in NDPS matters. They submit that mere filing of a report under Section 173 (2) is not determinative of the completion of an investigation and rely on Satya Narain Musadi v. State of Bihar - (1980) 3 SCC 152, Vellinedipuram v. State of Hyderabad - 1993 SCC OnLine AP 260, Ranjeet Manohar Machrekar v. State of Maharashtra - Criminal Bail Application No. 509/2014 (Bombay).

7. The learned Counsel for the accused submitted that the Drug Law Enforcement Field Officers' Handbook issued by the Narcotics Control Bureau has a certain level of statutory force and has been issued by an expert agency in terms of Section 4 (2) of the NDPS Act. Even if, the handbook is regarded as a purely executive instruction, the same is binding upon the investigating agencies under Article 256 of the Constitution of India. They rely on Swaraj Abhiyan v. Union of India - (2018) 12 SCC 170, Katya Co-operative Building Society Ltd. v. Government of Andhra Pradesh - 198 (2) (HC) AP Law Journal 158 and Dr. D.Y. Patil Educational Academy v. Director of Technical Education - (2009) 1 Mah LJ 192.

8. The learned Advocate General, Public Prosecutor, and Assistant Solicitor General of India adopt the reasoning reflected in the decisions relied upon by the Public Prosecutor before the Learned Single judge. They submit that a police report under Section 173(2) of Cr.PC is only an opinion of the IO that insofar as he is concerned, the investigation is complete in all respects. They submit that the requirement of forwarding documents and statements in terms of Section 173(5) is only directory and therefore, even if no CA/FSL report is forwarded to the Special Court along with the police report, neither the police report nor the investigation be said to be incomplete. They point out that the limitation prescribed under Section 167(2) of Cr.PC r/w 36-A(4) of the NDPS Act is only for filing the charge-sheet and not for taking cognizance of the offense. They submit that once a charge-sheet complying with the provisions of Section 173(2) of Cr.PC is filed within the period prescribed, no question of any default bail arises. The learned Counsel submit that Phulbande (supra) and the decisions that follow it are per incuriam and even contrary to the law laid down by the Hon'ble Supreme Court. They rely on Narendra Kumar Amin v. Central Bureau of Investigation - (2015) 3 SCC 417, Jagdish Budhroji Purohit v. State Of Maharashtra . - (1998) 7 SCC 270, Suresh Kumar Bhikam Jain v. State of Maharashtra - (2013) 3 SCC 77, CBI v. R.S. Pai - (2002) 5 SCC 82, Narayan Rao v. State of AP - AIR 1957 SC 737, Tara Singh v. State - AIR 1951 SC 441 and Dinesh Dalmia v. Cbi . - (2007) 8 SCC 770 in support of their contentions.

9. The rival contentions now fall for our determination.

10. Precedents apart, even based upon the statutory scheme in Sections 2(h), 2(r), 167, 169, 170, 173, 190, and 309 of Cr.PC r/w Section 36-A(4) of the NDPS Act, the contention that a charge-sheet filed within the prescribed period under Section 167(2) Cr.P.C. being incomplete because the CA/FSL report was not produced along with it, with respect, cannot be accepted.

11. Section 2(r) Cr.P.C. defines “police report” to mean a report forwarded by a police officer to the Magistrate under Section 173(2) Cr.P.C. Significantly, Section 2(r) Cr.P.C. refers only to Section 173(2) and not to Section 173(5) Cr.P.C. Even Section 190(1)(b) Cr.P.C., which is concerned with the magistrate taking cognizance of the offense also refers only to a police report as defined under Section 2(r) Cr.P.C. and not to any documents or statements as contemplated by Section 173(5) Cr.P.C that may accompany such police report.

12. Section 173(5) Cr.P.C. reads as follows:

“(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements-recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.”

13. The expression “such report” used in Section 173(5) Cr.PC refers to the police report in terms of Section 173(2) Cr. PC. Section 173(5) Cr.P.C. then provides that in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate “along with the report” the documents and statements referred to in sub-clauses (a) and (b). This means that the report under Section 173(2) Cr.P.C. is different and distinct from the documents and statements contemplated by Section 173 (5) Cr.P.C. though, there is a directory requirement that such documents and statements are required to be forwarded to the Magistrate along with the police report under Section 173(2) Cr.P.C.

14. The police report containing all the details prescribed in section 173(2) is complete in terms of the statutory scheme. Therefore, merely because the documents or statements as contemplated by Section 173(5) may not have been forwarded by the police along with the complete police report under Section 173(2), such police report, will not be an incomplete police report and entitle the accused a default bail under section 167(2)

15. The learned counsel for the accused relied on certain observations in Satya Narain Musadi (supra) to submit that the statements and documents contemplated by Section 173(5) are an integral part of a police report under Section 173(2) and therefore, a police report unaccompanied by a foundational document like CA/FSL report is incomplete. The observations so focussed upon, are to be found in para 10, and read as follows:

“The report as envisaged by Section 173(2) has to be accompanied as required by Sub-section (5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by sub-section (2) from its accompaniments which are required to be submitted under Sub-section (5). The whole of it is submitted as a report to the Court”.

16. The over-emphasis on the above observations is an attempt to read such observations divorced from the entire context and setting in which they appear. This is also an attempt to avoid reading and construing the entire para 10 in Musadi (supra) holistically. Such selective reading ignores not just the entire context and setting but even the observations which precede and follow the above observations focussed upon by them. This according to us, is not the proper manner of construing a precedent.

17. For instance, in para 10 of Musadi (supra) itself, before the above-referred observations, this is what the Hon'ble Supreme Court has observed:

“Section 173(2) thus provides what the report in the prescribed form should contain. In this case, the report did contain the name of the accused and the nature of the offense. In fact, Section 170 provides that if upon an investigation under Chapter XII it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground to proceed against the accused such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offense upon a police report, etc. If the accused is on bail that fact will be notified in the final report submitted under Section 173(2). Therefore, the statutory requirements of the report under Section 173(2) would be complied with if the various details therein prescribed are included in the report. This report is an intimation to the Magistrate that upon investigation into a cognizable offense the investigating officer has been able to procure sufficient evidence for the Court to inquire into the offense and the necessary information is being sent to the Court. In fact, the report under Section 173(2) purports to be an opinion of the investigating officer that as far as he is concerned he has been able to procure sufficient evidence for the trial of the accused by the Court and when he states in the report not only the names of the accused but names of the witnesses, the nature of the offense and a request that the case be tried, there is compliance with Section 173(2)”.

18. Further, in para 10 of Musadi (supra) itself, after the observations focussed upon by the learned counsel for the accused, the Hon'ble Supreme Court has made the following significant observations:

“But even if a narrow construction is adopted that the police report can only be what is prescribed in Section 173(2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offense must be set out in the report under Section 173(2) submitted by the police officer would be expecting him to do something more than what the Parliament has expected him to set out therein. If the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offense, it would be sufficient compliance with Section 11. The details which would be necessary to be proved to bring home the guilt to the accused would emerge at a later stage when after notice to the accused a charge is framed against him and further in the course of the trial. They would all be matters of evidence and Section 11 does not require the report to be or to contain the evidence in support of the charge, its function being merely to afford a basis for enabling the Magistrate to take cognizance of the case (see Bhagwati Saran v. State of Uttar Pradesh”.

19. The above-referred observations in para 10 of Musadi (supra) that precede and follow the observations focussed upon by the learned counsel for the accused make it clear that as long as the police report contains the details prescribed under Section 173(2), such report, is a complete report in terms of Section 2(r). This conclusion was recorded by the Hon'ble Supreme Court in Musadi (supra), upon a broad-based as well as a narrow construction of statutory provisions. The Hon'ble Supreme Court further held that once a charge sheet in terms of Section 173(2) is filed within the stipulated time, the question of grant of default bail does not arise. The filing of the charge sheet is sufficient compliance with Sections 167(2)(a)(ii) Cr.PC and whether cognizance is taken or not is not material as far as this Section is concerned.

20. A contention similar to now which is raised by the learned counsel for the accused was turned down by the Hon'ble Supreme Court in Suresh Kumar Bhikam Jain (supra). There, a charge sheet containing the details specified in Section 173(2) had been filed within the time prescribed under Section 167(2). However, no copy of the sanction order was produced along with such a charge sheet. The accused contended that in the absence of a sanction order, the Magistrate had no authority to take cognizance of the offense or to pass any further remand orders under Section 309 and therefore the accused was entitled to default bail under Section 167(2). This contention was however negatived holding that a police report or a charge sheet containing details specified in Section 173(2) had been filed within the period stipulated under Section 167(2) and the issue of cognizance was to be addressed later. The police report was complete even though the sanction order was not accompanying it, and therefore, the accused was not entitled to default bail. In this case the Hon'ble Supreme Court considered its several earlier rulings and held that none of such rulings detract from the position that once a charge sheet is filed within the stipulated time, the question of grant of default bail does not arise. The filing of a charge sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) and whether cognizance is taken or not, is not material as far as Section 167 Cr.P.C. is concerned.

21. In Tara Singh (supra), the police filed their challan (police report or charge sheet) on 03.10.1949 which was the last date as stipulated under Section 167(2). The report of the imperial serologist and drawing of the sketch map of the occurrence was however produced by filing a second challan on 05.10.1949 i.e. beyond the period stipulated in Section 167(2). Based on this, the accused contended that he was entitled to default bail because the challan filed on 03.10.1949 was an incomplete challan or that the first challan filed on 03.10.1949 stood vitiated on account of the filing of the second challan on 05.10.1949.

22. The Hon'ble Supreme court speaking through Vivian Bose J. rejected the aforesaid contention of the accused. The Court held that the challan filed on 03.10.1949 was a complete challan, even though the report of the imperial serologist or the drawing of the sketch map of the occurrence did not accompany the same. The Court held that all that Section 173(1)(a) requires is that as soon as the police investigation under Chapter XIV is complete there should be a report forwarded to the Magistrate in the prescribed form setting forth names of parties, nature of information, and names of persons who appear to be acquainted with circumstances of the case. Since all this appears to have been done in the report of 02.10.1949, the Court ruled that it was in fact a complete report as contemplated under Section 173(1) of the Code even though the police had themselves referred to it as an incomplete report.

23. The Full Bench of Punjab and Haryana High Court in State of Haryana v. Mehal Singh - AIR 1978 P&H 341, on a detailed consideration of statutory provisions and precedents on the subject, has held as follows:

“…………… Since a report to qualify itself to be a ‘police report’ is required to contain only such facts as are mentioned in 173 (2), so if once it is found that the police report contained all those facts, then so far as the ‘investigation’ is concerned the same has to be considered to have been completed”. …………….Even if the investigating officer had not received the report of the expert, so far as his job of collecting of evidence is concerned, that is over the moment he despatches the material for the opinion of the expert and incidentally cites him as a witness if he relies on his testimony.”

24. The learned counsel for the accused then submitted that even if documents and statements as contemplated by 173(5) may not be an integral part of a police report under section 173(2), still, the production of such documents and statements is mandatory because of use of the expression “shall” in section 173(5) and therefore, the requirement prescribed by Section 173(5) is mandatory and not merely directory as urged by the prosecution. They submitted that at least in an NDPS matter the failure to forward a CA/FSL report is an indication that the investigation is incomplete and there is a breach in compliance with the mandate of section 173(5).

25. The above precise contention has already been rejected by the Hon'ble Supreme Court in Narendra Kumar Amin (supra), CBI v. R.S. Pai (supra), and Narayan Rao (supra). These decisions, in terms, hold that the provisions of Section 173(5) are only directory notwithstanding the use of the expression “shall” therein. This means that even if there is any omission or failure on the part of the police officer to forward the documents and statements as contemplated by Section 173(5) along with the police report under Section 173(2), there is no scope to hold that the police report under Section 173(2) is either incomplete or that the same was filed without the completion of investigations by the police officer.

26. In Narendra Kumar Amin (supra), the accused was arrested on 04.04.2013 for an offense punishable with life imprisonment or death. The police report was filed on 04.07.2013. However, the police report was not accompanied by documents as contemplated by Section 173(5), which documents were filed only on 08.07.2013. Relying on K. Veeraswami v. UOI, (1991) 3 SCC 655, (para 76) and urging that the police report was incomplete, the accused, on 04.07.2013 itself applied for default bail.

27. The Hon'ble Supreme Court upon analyzing the provisions in Sections 173, 190, and 309 rejected the aforesaid contention of the accused. The Court enumerated the information that must be detailed in the police report forwarded to the magistrate by the Investigating Officer as provided under Section 173(2). The Court then noted that even Section 190(1) (b) Cr.PC refers only to a police report under 173(2) for taking cognizance. The Court then referred to the three-judge bench judgment in CBI v. R.S. Pai (supra) wherein it was held that omission in not producing relevant documents at the time of submitting the police report can always be made good by the police officer after seeking leave to produce the same. In R.S. Pai (supra), the three-judge bench had proceeded to observe that if further investigation is not precluded under Section 173(8), then, there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation and the word ‘shall’ used in Section 173(5) cannot be regarded as mandatory but is only directory.

28. The Court on analyzing the statutory scheme concluded that as long as a police report containing the details in Section 173(2) was filed within the period stipulated in section 167(2) there was no question of an accused claiming a default bail. This decision is an authority for the propositions that there is a distinction between a police report under Section 173(2) and documents and statements under Section 173(5) to ordinarily accompany such a police report; and that the provisions of Section 173(5) about the forwarding of the documents and statements along with the police report, is only directory and not mandatory; and further that as long as a police report containing the details prescribed in section 173(2) is filed within the period stipulated in Section 167(2), such police report cannot be regarded as incomplete or deficit merely because all the documents or statements in terms of Section 173(5) were not filed along with such a police report. The Court ruled that no question of default bail would therefore arise in such a case.

29. Confronted with this, the learned counsel for the accused submitted that the decision of the Hon'ble Supreme Court in Narendra Kumar Amin (supra) holding that the provisions of Section 173(5) are directory is hit by the rule of “per incuriam” for the following two reasons:

i. The decision conflicts with the ratio in the Constitution Bench ruling in K. Veeraswami (supra) that has, in para 76, held that all documents and statements as contemplated by Section 173 (5) Cr.PC must form a part of the charge sheet if such charge sheet is to be regarded as a complete charge sheet;

ii. The decision relies on R.S. Pai (supra) and Narayan Rao (supra) that were decided under the old Cr.PC and take no note of the provisions in the new Cr.PC that has brought about significant changes.

30. Since the argument was entirely based on the observations in paragraph 76 in K. Veeraswami (supra), they are reproduced for the convenience of reference:

“76. The charge-sheet is nothing but a final report of police officer under Section 173(2) of the CrPC. The Section 173(2) provides that on completion of the investigation the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government and stating therein (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 had been released on his bond and, if so, whether with or without sureties; and (g) whether he has been forwarded in custody under Section 170. As observed by this Court in Satya Narain Musadi v. State of Bihar ((1980) 3 SCC 152) that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the magistrate that upon investigation into a cognizable offence the Investigating Officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Section 173(2) purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evidence.”

31. The contention that Narendra Kumar Amin (supra) conflicts with the ratio of the constitution bench ruling in para 76 of K. Veeraswami (supra) was squarely raised in Narendra Kumar Amin (supra) itself, but the same was turned down in para 15 which reads as follows:

“Observation made at para 76 of the Constitution Bench judgment of this Court in the case of K. Veeraswamy (supra) that the report is complete if it is accompanied by all documents and statement of witnesses as required under Section 173(5) of Cr.P.C. cannot be construed as the statement of law, since it was not made in the context of the police report under Section 2(r) read with Section 173(2) (5) and (8) of Cr.P.C. On the contrary, the three-Judge Bench of this Court in the decision in Central Bureau of Investigation v. R.S. Pai's case (supra), after referring to the earlier judgment of the coordinate Bench in Narayan Rao's case (supra) categorically held that the word “shall” used in sub-Section (5) cannot be interpreted as mandatory, but directory. The said statement of law is made after considering the provisions of Section 2(r) read with Section 173(5) and (8) of Cr.P.C. Therefore, filing of police report containing the particulars as mentioned under Section 173(2) amounted to completion of the filing of the report before the learned ACJM, cognizance is taken and registered the same. The contention of the appellant that the police report filed in this case is not as per the legal requirement under Section 173(2) & (5) of Cr.P.C. which entitled him for default bail is rightly rejected by the High Court and does not call for any interference by this Court.”

32. Since, Narendra Kumar Amin (supra) makes a specific reference to K. Veeraswamy (supra) and thereafter proceeds to explain and construe such decision, the explanation or construction of K. Veeraswamy (supra) will be binding on this Court. In such circumstances, Narendra Kumar Amin (supra) cannot be held to be per incuriam on the alleged ground that it conflicts with the ratio spelled out in para 76 of K. Veeraswami (supra).

33. In Central Board of Dawoodi Bohra Community (supra) the Constitution Bench of the Supreme Court has itself held that per incuriam means a decision rendered by ignorance of a previous binding decision which is a decision of its own or a court of coordinate or higher jurisdiction or in ignorance of a term in statute or the rule having the force of law. A ruling making a specific reference to an earlier binding precedent may not be correct but cannot be said to be per incuriam.

34. Even the decision of the Hon'ble Supreme Court in Dinesh Dalmiya (supra) specifically quotes in para 21, the relevant extract from para 76 of K. Veeraswami (supra) and relying on the same proceeds to hold that even if the report of the Government Examiner of Questioned Documents (GEQD) had not been filed along with the police report under Section 173(2), within the period stipulated in section 167(2), the police report or the charge sheet does not become vitiated in law or based on the charge sheet unaccompanied by the GEQD report, default bail cannot be claimed or granted.

35. All these, according to us, are sufficient reasons to turn down the contention that Narendra Kumar Amin (supra) is per incuriam because it allegedly conflicts with the observations in para 76 of K. Veeraswami (Supra)

36. Incidentally, in Aleksander Kurganov v. State of Goa - Criminal Misc. Application (Bail) No. 37 & 38 of 2021 (F) (Bombay) dated 05.02.2021, the learned Single Judge of our Court, in the context of NDPS Cases noted the conflicting set of decisions on the issue of whether a charge sheet can be said to be incomplete merely because the CA/FSL report was not filed along with it within the period stipulated under Section 167(2) Cr.P.C. After noting this conflict the learned Single Judge further noted that as a Single Judge, faced with a decisional conflict, the principles of precedent do not allow him to choose one over the other and that this issue must be resolved by a bench of superior numeric strength. However, the learned Single Judge, at para 66 held that the necessity of a reference to a Division Bench is obviated on account of the ratio in Dinesh Dalmiya (supra). The learned Single Judge has observed that Dinesh Dalmiya (supra) is an authority for the proposition that a mere absence of a forensic report neither renders the charge sheet as incomplete nor vitiates such a charge sheet. We endorse this reasoning of the learned Single Judge.

37. Besides, in this case, we are quite satisfied that Mr. Gaonkar's reading of para 76 in K. Veeraswamy (supra) is not correct because, firstly, the observations referred to by him were not at all in the context of the police report in Section 2(r) r/w Sections 173(2), (5) and (8) of Cr.P.C. Secondly, the observations in para 76 in K. Veeraswamy (supra) neither lay down that the provisions of Section 173(5) Cr.P.C. are mandatory nor that a police report or a charge sheet containing the details prescribed under Section 173(2) Cr.P.C. is vitiated or incomplete because some documents and statements as contemplated by Section 173(5) Cr.P.C. do not accompany the same. Therefore, based on the incorrect construction of the observations in para 76 in K. Veeraswamy (supra), we are not persuaded to hold that the decision of the Hon'ble Supreme Court in Narendra Kumar Amin (supra) is per incuriam as submitted by the learned counsel for the accused.

38. The contention that Narendra Kumar Amin (supra) is per incuriam because it relies on R.S. Pai (supra) and Narayan Rao (supra) and these two decisions were based on the provisions of the old code also cannot be accepted.

39. Firstly, the discussion in para 13 of Narendra Kumar Amin (supra) is in the precise context of the provisions in Sections 2(r), 173(2), and (5) of the new Code. After construing these provisions in the new Code, the Hon'ble Supreme Court concluded that as long as the police report or the charge sheet complies with the particulars in Section 173(2) such police report or charge sheet is a complete police report or charge sheet. Therefore, Narendra Kumar Amin (supra) cannot be held as per incuriam allegedly because it impliedly referred to the provisions of the old Code.

40. Secondly, Dinesh Dalmiya (supra) is a decision that takes the view similar to that in Narendra Kumar Amin (supra) and even this decision is in the context of the provisions of Sections 167, 173, 190, and 309 of the new Code.

41. Thirdly, Mr. Gaonkar was unable to demonstrate that there was some significant change in the provisions of the old Code and the new Code insofar as the status of a police report or charge sheet was concerned. The contention now raised was considered and rejected by the Full Bench of the Punjab and Hariyana High Court in Mehal Singh (supra). These are further grounds to hold that Narendra Kumar Amin (supra) is not per incuriam. In fact, Narendra Kumar Amin (supra) is quite consistent with several decisions of the Hon'ble Supreme Court, including but not restricted to R.S. Pai (supra), Narayan Rao (supra), and Tara Singh (supra).

42. Therefore, on the analysis of the statutory provisions, as also the decisions that have analyzed various shades of such statutory provisions, we believe that a police report or a charge sheet containing the details specified in Section 173(2), if filed within the period prescribed under Section 167(2) is not vitiated or incomplete simply because the same was not accompanied by a CA/FSL report and, based thereon, there is no question of the accused insisting on default bail.

43. The next question which arises for our determination is whether Phulbande (supra) and the decisions which rely on or follow Phulbande (supra) or otherwise take the view similar to that in Phulbande (supra) are per incuriam or not. Given the above reasoning and the numerical strength of our bench, we could, perhaps, simply overrule Phulbade (Supra). But, with the utmost respect, we feel that certain binding precedents, directly on the point were not brought to the notice of the learned single judge who decided Phulbande (Supra). Rather, overruled and reversed decisions were cited before the learned single judge in the said matter. Therefore, we respectfully believe that the decision in Phulbade (Supra) is per incuriam and does not reflect what we believe is the correct position in law on the subject.

44. Phulbande (supra) takes the position that a charge-sheet, though filed within the time limit specified under Section 167(2), if unaccompanied by a CA/FSL report, is incomplete and the accused is entitled to default bail. Phulbande (supra) was relied upon and/or followed in Punjaram (supra), Sagar Joshi (supra), Manik Chaugule (supra), Seema Panchariya (supra), and Ranjit Machrekar (supra). Therefore, if Phulbande (supra) is found to be per incuriam, which we respectfully believe it is, then, Phulbande (supra) and the decisions which follow it, will not reflect the correct position in law on this subject.

45. The rule of “per incuriam” has been developed as an exception to the Doctrine of Judicial Precedent. Literally, it means judgment passed in ignorance of a relevant statute or any ignorance of a previous decision of its own or of a Court of coordinate jurisdiction or a superior court which covered a case before it. A judgment can also be “per incuriam” if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a coequal or larger Bench or if the decision of a High Court does not align with the views of the Supreme Court. (See Shah Faesal v. Union Of India - (2020) 4 SCC 1).

46. The discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, the certainty of law, consistency of rulings, and comity of courts would become a costly casualty. Therefore, Judicial discipline envisages that a coordinate bench follows the decisions of an earlier coordinate bench. If a coordinate bench does not agree with the principles of law enunciated by another bench, the matter may be referred only to a larger bench. But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate bench. (See State of Punjab v. Diwan's Modern Breweries Ltd. - (2004) 11 SCC 26; and Roger Shashoua v. Mukesh Sharma - (2017) 14 SCC 722)

47. In Phulbande (supra), the two applicants were charged with offenses under Sections 20, 22, and 25 of the NDPS Act and arrested on 23.06.2001. The charge sheet was filed before the Magistrate within 90 days from the date of the first remand but the same was not accompanied by a copy of the CA/FSL report. This record CA/FSL report was received by the IO much beyond the 90 day and filed even later. Based on this, default bail was claimed urging that on the 91 day, neither the investigations nor the police report was complete. The learned Counsel for the accused cited the decision of the Learned Single Judge of the Andhra Pradesh High Court in Matchumari China Venkata Reddy v. State of Andhra Pradesh, 1993 (1) Law Summary 277 as well as the decision of the learned Single Judge of this Court in Sharadchandra Vinayak Dongre v. State of Maharashtra, (1991) 1 Mah LJ 656 when in fact, the first had been already and specifically overruled and the second had been already reversed by the Hon'ble Supreme Court on the precise point in issue.

48. The Learned Single Judge in Phulbande (supra), believing that the decisions cited were good law, held that the issue of a charge-sheet not accompanied by a copy of CA/FSL report being incomplete was no longer res integra but was already concluded by two decisions cited at the Bar. In paragraph 11, the Learned Single Judge extensively quoted paragraphs 9 and 10 of the judgment in Matchumari (supra) and thereafter added that “similar view is taken by this court in the case of Sharadchandra Vinayak Dongre v. State of Maharashtra, (1991) 1 Mah LJ 656 = 1991 Cri LJ 3329 where it has been observed that incomplete charge sheet cannot be treated as police report at all as contemplated under Section 173(2) of the Code”.

49. Phulbande (supra), firstly and extensively relies on the decision of the Learned Single Judge of Andhra Pradesh High Court in Matchumari (supra). However, Phulbande (supra), did not notice that this decision of the Learned Single Judge of Andhra Pradesh High Court in Matchumari (supra) had already been overruled by the Division Bench of the same Court in Vellinedipuram (supra). In paragraph 6 the Division Bench expressed as follows:

“The view taken by the learned single Judge in a decision reported in Matchumari China Venkata Reddy v. State of Andhra Pradesh, 1993 (1) Law Summary 277, that the police report filed under s. 173 (2) is not complete unless the same is filed in complete form complying with all the formalities prescribed under s. 173 (2) and (5), and the accused shall have absolute right for being released cannot be accepted. With respect, we cannot agree to the said view, and consequently, the view expressed by one of us (Radhakrishna Rao, J.) in a decision reported in V. Krishna v. State of Andhra Pradesh, (1989) 1 ALT 16, has to be affirmed”.

50. Secondly, and again more importantly Phulbande (supra) relied upon the decision of another Learned Single Judge of our court in the case of Sharadchandra Dongre (supra) when, in fact, as of 13.02.2002, this decision, on the precise issue of ‘incomplete charge sheet’ had been expressly reversed by the Hon'ble Supreme Court in State of Maharashtra v. Sharadchandra Dongre, (1995) 1 SCC 42. The Hon'ble Supreme Court at para 5 of the SCC report specifically held that “this view of the High Court in facts and circumstances of the case is patently erroneous”. This decision though delivered almost eight years earlier and reported in all prominent journals, was also not brought to the notice of the Learned Single Judge deciding Phulbande (supra).

51. In State of Maharashtra v. Sharadchandra Dongre (supra), the Hon'ble Supreme Court, after adverting to the requirements of Section 173(2), at para 7 held as follows:

“The purpose of the submission of the police report with the details as mentioned above is to enable the Magistrate to satisfy himself, whether on the basis of the report and the material filed along with the police report, a case for taking cognizance has been made out or not. After applying his mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. Section 190(1)(b) Cr.PC provides that a Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offense. Therefore, if the police report and the material filed therewith is sufficient to satisfy the Magistrate that he should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted by it under Section 173(2) Cr.PC. Merely, because the prosecution had filed an application, after submission of the charge-sheet, seeking permission to file “supplementary charge-sheet”, it could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him along with the charge-sheet that cognizance of the offense was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge-sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate”.

52. The aforesaid means that Phulbande (supra) was not only decided in ignorance of the fact that the decision of the Learned Single Judge relied upon therein had already been reversed by the Hon'ble Supreme Court but further, the decision of the Learned Single Judge in Phulbande (supra) is not consistent with or reconcilable with the decision of the Hon'ble Supreme Court in State of Maharashtra v. Sharadchandra Dongre (supra). We believe with the utmost respect that all these are sufficient grounds to hold that Phulbande (supra) was decided per incuriam.

53. Thirdly, it now transpires that even the decision of yet another Single Judge of this Court in Balaji Suwarnkar (supra) decided on 18.04.1991 that is almost 10 years earlier, was again not brought to the notice of the Learned Single Judge deciding Phulbande (supra). Suwarnkar (supra) was a decision of a coordinate bench directly on the point but taking the position that a charge sheet that was unaccompanied by a CA/FSL report could not have been regarded as incomplete, thereby not entitling the accused to default bail under Section 167 (2) Cr.PC. Ignoring a decision of the coordinate bench on the point, no doubt, because the same was not even pointed out by the learned counsel appearing for the parties is yet another ground to hold that Phulbande (supra) was decided per incuriam.

54. Suwarnkar (supra) was in fact specifically approved by the Division Bench of our Court in Rohini Godse (supra) decided on 04.06.1996. Phulbande (supra), failed to notice Rohini Godse (supra) which was delivered by the Division Bench of our Court and hence binding on the learned Single Judge who decided Phulbande (supra). This renders the decision in Phulbande (supra) per incuriam.

55. Thus, it is clear that Phulbande (supra) was based almost entirely on the decision of the learned Single Judge of the Andhra Pradesh High Court in Matchumari (supra) even though, the said decision, had already been overruled by the Division Bench of the same High Court in Vellinedipuram (supra). Secondly, Phulbande (supra) was based on the decision of the learned Single Judge of our Court in Sharadchandra Dongre (supra) which had already been reversed by the Hon'ble Supreme Court in State of Maharashtra v. Sharadchandra Dongre (supra). Thirdly, Phulbande (supra) did not notice a prior but contrary view taken by the learned Single Judge of our Court in Suwarnkar (supra). Fourthly, Phulbande (supra) failed to notice that the prior and contrary view in Suwarnkar (supra) had been expressly approved by the Division Bench of our Court in Rohini Godse (supra). Fifthly, Phulbande (supra) is inconsistent with or irreconcilable with several decisions of the Hon'ble Supreme Court. According to us, all these are sufficient reasons to hold that Phulbande (supra) was decided per incuriam.

56. In State Of Orissa v. Nalinikanta Muduli . - (2004) 7 SCC 19 : AIR 2004 SC 4272 the Hon'ble Supreme Court observed that it was strange that a decision which had been overruled nearly a quarter of a century back was cited by the Bar and the Court did not take note of this position and disposed of the matter placing reliance on the overruled decision. This was because the decision of the Hon'ble Supreme Court was not brought to the notice of the learned Single Judge of the High Court who decided the matter in ignorance of the same. The Hon'ble Supreme court observed that it is very unfortunate that the learned counsel for the accused who is supposed to know the decision did not bring this aspect to the notice of the learned Single Judge. The Hon'ble Supreme Court observed that members of the Bar are the officers of the court and they have a bounden duty to assist the court and not to mislead it. Citing a judgment of a court that has been overruled by a larger bench of the same high court or the supreme court without disclosing the fact that it has been overruled is a matter of serious concern. It is one thing that the court notices the judgment overruling the earlier decision and decides on the applicability of the latter judgment to the facts under consideration before it. The Hon'ble Supreme Court observed that it did not appear that even the learned counsel for the respondent before the High Court referred to the judgment of the Supreme Court overruling the judgment of the High Court. All this shows that the matter was dealt with very casually.

57. Though, in this case, we do not, for a moment suggest that the overruled and reversed decisions were deliberately cited at the Bar or that overruling and reversing decisions were deliberately suppressed, reference is made to the decision of the Hon'ble Supreme Court in Nalinikanta Muduli (supra) to emphasize that the members of the Bar are the officers of the Court upon whom the judges rely. Therefore, they have a bounden duty to assist the Court and take utmost care to see that this does not happen. At the stage of deciding bail applications, despite best efforts, it is not always possible for the judges to themselves research and determine whether the decisions that are being cited before them have been overruled or reversed. In Phulbande (supra) had the overruled and reversed decisions not been cited before the learned Single Judge or if the decisions overruling and reversing the decisions had been cited, the conclusion, we believe, would have been entirely different.

58. Since Phulbande (supra) was relied upon and/or followed in Punjaram (supra), Sagar Joshi (supra), Manik Chowgule (supra), Ranjit Machrekar (supra), and Seema Panchariya (supra), even these decisions, will have to be held as per incuriam. These decisions are also not reconcilable with the decision of the Hon'ble Supreme Court in State of Maharashtra v. Sharadchandra Dongre (supra) and the decision of the learned Single Judge of our Court in Suwarnkar (supra) as approved by the Division Bench of our Court in Rohini Godse (supra). Suwarnkar (supra) inter alia relies upon the decision of the Hon'ble Supreme Court in R.K. Dalmia v. Delhi Administration - AIR 1962 SC 1821.

59. The learned counsel for the accused then submitted that the cases under the NDPS Act deserve special treatment when it comes to interpreting the provisions of Sections 167, 173, 190, and 309 of Cr.P.C. because in all such cases the identity of the substance is the foundational fact to launch a prosecution. They submit that the purpose of filing a charge sheet under Section 173(2) is to enable the Magistrate or the Special Court to take cognizance of the offenses. They submitted that in the absence of CA/FSL report in NDPS cases, the Magistrate or the Special Court will never be in a position to take cognizance of the offenses alleged. Therefore, they submitted that the decisions of this Court or the Hon'ble Supreme Court dealing with the cases under the enactments other than the NDPS Act are distinguishable and the principles laid down therein, ought not to apply.

60. Again, in the absence of any support from the provisions of the Cr.P.C. or for that matter in the absence of any precedents to support the above contention, we are unable to accept the same. Even on principle, we believe that a charge sheet is the expression of opinion on the part of the IO that so far as he is concerned, the investigation is complete. Thereafter, it is for the Magistrate or the Special Court to decide whether a case has been made out to take cognizance of the offense or not. In a given case, it is possible that the Magistrate or the Special Court based on the charge sheet and even the documents and statements produced under Section 173(5) may consider not taking cognizance of the offense. Therefore, merely because the charge sheet may not be accompanied by CA/FSL report, it cannot be said that the charge sheet is incomplete or that the investigations are incomplete and the accused is entitled to a default bail. The two aspects of default bail and taking cognizance of the offense cannot be linked in this manner whether the prosecution is under NDPS Act or any other Act.

61. In the precise context of cases under the NDPS Act, there is a long line of decisions delivered by the learned Single Judges of our Court in Suwarnkar (supra), Rafael Palafox Garcia (supra), Aleksander Kurganov (supra), Shrihari Valse (supra), and Sheikh Shabbir (supra) that have taken the view that a charge-sheet unaccompanied by a CA/FSL report is not incomplete and therefore, where the same is filed within the prescribed period, the accused, cannot insist on default bail. These decisions according to us, reflect the legal position correctly, and therefore, we endorse them.

62. The contention similar to what is now raised was rejected in Rafael Palafox Garcia (supra). Besides, there can be no general rule that the Magistrate or the Special Court can never take cognizance of any offense under the NDPS Act in the absence of a CA/FSL report. Ultimately, that will be a matter which will have to be decided on the facts of each case by the Magistrate or the Special Court as the case may be.

63. Further, the contention that a Magistrate or the Special Court, in any NDPS case, is not even competent to take cognizance of any offense based only on a field testing report as reflected in the Panchanama or otherwise in the absence of CA/FSL report is again, too wide a proposition to commend acceptance. Ultimately, a Magistrate or the Special Court will have to assess the charge sheet and, if necessary, the documents and the statements produced under Section 173(5) and thereafter decide whether any case is made out for taking cognizance of the offense.

64. For example, in Jagdish Budhroji Purohit v. State Of Maharashtra ., (1998) 7 SCC 270, the Hon'ble Supreme Court after rejecting the CA/FSL report sustained the conviction by accepting the evidence of the members of the raiding party to prove that the powder which was found from the factory was methaqualone. The witnesses had stated that they had carried a kit to the field and had received sufficient training and had sufficient knowledge of narcotic substances and methods of testing them. This evidence was found sufficient to sustain a conviction even after ignoring CA/FSL report. Therefore, if a conviction could be sustained on such evidence, surely, cognizance of the offense can also be taken based on such material produced along with the charge sheet. All this will have to be assessed on a case-to-case basis and therefore, the general proposition as urged on behalf of the accused cannot be accepted.

65. There is and there can perhaps never be any dispute with the proposition that the right of a default bail in terms of Section 167(2) is a very valuable right that is now even elevated to the status of a fundamental right under Article 21 of the Constitution of India. The several decisions like M. Ravindran (supra), Rakesh Paul (supra), relied on behalf of the accused, in this regard, therefore, need not even be discussed because there is and there can be no quarrel with the proposition laid down therein. However, as was explained by the Hon'ble Supreme Court itself in Dinesh Dalmiya (supra), such a right of default bail, although is a valuable right, the same is a conditional one. The condition precedent being pendency of the investigation. Therefore, once the investigation is complete with the filing of a police report containing the details specified under Section 173(2), the question of a claim or grant for default bail does not arise.

66. For all the aforesaid reasons, we hold that the presentation of a police report under Section 173(2) unaccompanied by a CA/FSL report does not amount to any incomplete police report or any incomplete charge sheet/challan even in the absence of an extension of time under Section 36-A(4) of the NDPS Act. Based thereon therefore the accused cannot insist upon a default bail.

67. Similarly, we hold that a police report under Section 173(2) or a charge sheet/challan accompanied by field testing reports as reflected in the Panchanama or otherwise also cannot be labeled as an incomplete police report/charge sheet/challan simply because the same was not accompanied by a CA/FSL report.

68. Question no. (i) and (ii) in this reference are answered accordingly.

69. On the issue of legal efficacy of the “Drug Law Enforcement Field Officers' Handbook” (handbook) issued by the Narcotic Control Bureau (NCB), Ministry of Home Affairs, Government of India, only Mr. Gaonkar contended that the same “has a certain level of statutory force”. He contended that in any case, the handbook constitutes “executive instructions” and therefore, what is set out therein binds even the State Government by virtue of Article 256 of the Constitution of India. He placed extensive reliance on the provisions of Section 4(2) of the NDPS Act and the decision of the Hon'ble Supreme Court in State Through Narcotics Control Bureau v. Kulwant Singh . - (2003) 9 SCC 193.

70. Mr. Faldessai, Assistant Solicitor General of India, who appeared in this matter countered the submissions of Mr. Gaonkar and submitted that the handbook neither has any statutory flavor nor does it constitute any executive instructions issued by the Central Government to bind inter alia the State Government or its investigating agencies. He submitted that the handbook is simply a manual for guidance to the IOs because it was found that quite often even in cases where adequate evidence was available, the courts have acquitted the accused persons based on some mistakes committed in the course of investigations.

71. Since both Mr. Gaonkar, as well as Mr. Faldessai, referred to the “foreword” to the handbook by the Director-General of the NCB, we note that the foreword, to a great extent, endorses the submissions made by Mr. Faldessai on this issue. Besides, there is nothing at least in the handbook to indicate that the same has any statutory flavor or that the same has been issued by the Central Government in the exercise of its executive powers.

72. Mr. Gaonkar has referred to Section 4(1) and 4(2) of the NDPS Act to submit that the handbook is nothing but a “measure” taken by the Central Government in terms of Section 4(1) of the NDPS Act. Section 4(1) of the NDPS Act indeed provides that subject to the provisions of the Act, the Central Government shall take all such measures as it deems necessary or expedient for preventing and combating abuse of narcotic drugs and psychotropic substances and the illicit traffic therein and for ensuring their medical and scientific use. Further, Section 4(2) provides that in particular and without prejudice to the generality of the provisions of Section 4(1), the measures which the Central Government may take concerning coordination of actions by various Government and other authorities under the NDPS Act.

73. In Kulwant Singh (supra) the issue arose as to whether a complaint filed by an authorized officer of the NCB was without the authority or law because it was alleged that the NCB was a creature of the statute i.e. the NDPS Act but not a department of the Central Government and only the authorized officers of a department of the Central Government were competent to file a complaint under the NDPS Act. In that context, the Hon'ble Supreme Court held that NCB was not a creature of the statute and it was nothing but a department of the Central Government. There was no discussion whatsoever on the issue of whether the handbook has any statutory force or can be regarded as an executive instruction issued by the Central Government. Therefore, based on Kulwant Singh (supra) we are unable to hold that the handbook has some statutory flavor or is an executive instruction issued by the Central Government.

74. If Mr. Gaonkar's contention is to be accepted, then, even the various timelines provided in the handbook will warrant strict enforcement. For example, the handbook requires the field officers to ensure that the charge sheet must be filed at least two weeks before the period stipulated under Section 167(2). Surely, such timelines provided for the guidance of the field officers, by way of abundant caution, have no legal efficacy and cannot be elevated to the status of some statutory rules or even executive instructions.

75. In any case, Mr. Gaonkar was unable to show us anything in the handbook, which suggests that a police report or a charge sheet unaccompanied by a CA/FSL report is an incomplete police report or charge sheet. There is nothing in the handbook that also states that no police report or charge sheet can be filed based only on the field testing reports and without the receipt of the CA/FSL report. Therefore, we are unable to accept the contention that the handbook has any legal efficacy because it has some statutory flavour or because it is a set of executive instructions.

76. The rulings in Swaraj Abhiyan (supra), Katya Cooperative Building Society Ltd. (supra) and D.Y. Patil Educational Academy (supra) have been considered by us, but according to us, all such rulings are not relevant to the issue under consideration. This is because, in the present case, there is nothing shown to us to hold that the handbook, indeed has any statutory flavour or that the same is a set of executive instructions issued by the Central Government. The decisions relied upon refer to the legal efficacy or the binding character of either statutory rules or executive instructions.

77. Incidentally, we find that this handbook was extensively referred to and relied upon by the learned Single Judge of our Court in Sagar Joshi (supra). Apart from the circumstance that this handbook has no legal efficacy, we find that even this handbook does not say that the field testing report is required to be separately made or that such field testing report as may have been reflected in the spot panchanama is unreliable and therefore, totally insufficient even for taking cognizance of any offense under the NDPS Act.

78. The handbook, in the context of the “drug detection kit” in fact, states that these kits assist the IOs in forming a reasonable belief about a substance being a drug. Further, it is essential that the IOs conduct the test, match the resultant color, and form a reasonable belief that a substance gives a positive color pattern for a drug. The handbook itself makes it clear that this process must be recorded in the Panchanama. The handbook also states that the tests are only indicative and it is possible that a designated laboratory may return a negative report. But this is far-cry from suggesting that the handbook castigates the field testing reports as totally unreliable or that based upon the field testing reports as reflected in the Panchanama, even cognizance can never be taken of any offense under the NDPS Act.

79. In fact, in the context of Sagar Joshi (supra) all the learned counsel who appeared before us agreed that there is nothing such as “field testing reports of suspect substance” and the factum of the conduct of field tests and the results thereof are recorded in the Panchanama that is invariably conducted at the spot. Mr. Bhobe, the learned Public Prosecutor pointed out that the tool kits or the drug detection kits which the IOs carry with them for a raid, do not, themselves, generate some reports like an ECG Machine, which can be separately styled as “field testing reports of suspect substance”. Therefore, there can be no requirement or insistence of separate field testing reports of suspect substance since, even in terms of the handbook, the process of testing and the results have to be recorded in the Panchanama. Similarly, reference to “Test Memos” in Sagar Joshi (supra), is nothing but a reference to the covering letters, under the cover of which samples are sent to the designated laboratories, no doubt by appropriately sealing the same. On this aspect also, there was no disagreement between the learned counsel appearing in this reference.

80. For all the aforesaid reasons we hold that the Drug Law Enforcement Field Officers' Handbook issued by the NCB has no legal efficacy, in the sense that the handbook has no statutory flavor or the handbook is not a set of executive instructions issued by the Central Government as contended by Mr. Gaonkar. Question No. (iii) is answered accordingly.

81. Resultantly, we answer this reference by holding the following:

(a) Question no. (i) is answered by holding that even in an NDPS case a police report containing the details prescribed under Section 173(2) Cr.P.C. is a complete police report or a charge sheet or a challan even if it is unaccompanied by a CA/FSL report. If such police report is filed within the period stipulated under Section 167(2) Cr.P.C. r/w. Section 36-A(4) of the NDPS Act, the accused cannot insist upon a default bail.

(b) Question no. (ii) is answered by holding that in an NDPS case, a charge sheet accompanied by a field testing report as reflected in the Panchanama or otherwise also cannot be labelled as an incomplete police report/charge sheet/challan simply because the same was not accompanied by a CA/FSL report.

(c) Question no. (iii) is answered by holding that the Drug Law Enforcement Field Officers' Handbook issued by the NCB has no legal efficacy, in the sense that the handbook has no statutory flavour or the handbook is not a set of executive instructions issued by the Central Government.

82. The Registry is now directed to place Criminal Miscellaneous Application (Bail) No. 88/2021 (Filing) for consideration before the learned Single Judge.