Whether chargesheet filed without FSL report amounts to incomplete chargesheet and entitles accused to default bail? SC refers to larger bench

Supreme Court: In a criminal special leave to appeal against Delhi High Court’s decision, whereby, the accused person’s application seeking default bail on grounds that the complete chargesheet was not submitted within the stipulated time as per Section 167(2) of the Code of Criminal Procedure, 1973 (‘CrPC’) was dismissed, the Division Bench of Aniruddha Bose and Sanjay Kumar, JJ. referred the question to larger Bench that whether failure on the part of the prosecution to include the FSL report pertaining to the seized contraband article(s) along with the chargesheet, within the time specified in Section 167(2) of the CrPC read with Section 36-A of the NDPS Act, would entitle the accused to default bail or not.

It was alleged that 2 kgs of heroin was recovered from the accused person and was arrested on 07-04-2022 for offences under various provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the NDPS Act’). The chargesheet was filed on 07-10-2024 and the report of the Forensic Science Laboratory (‘FSL’), identifying the specimen allegedly seized was not available at the time of filing of chargesheet. The FSL Report was submitted later on 05-07-2023, confirming the seized material as heroin. The High Court had rejected the bail plea of the accused, holding that the absence of the FSL report did not automatically entitle the accused for default bail.

Issue

Whether non-furnishing of the FSL report with the chargesheet, within the prescribed time, would entitle an accused to default bail on the ground that it would be an incomplete chargesheet without such a report?

The Court referred to Central Bureau of Investigation v. Kapil Wadhawan and Anr., 2024 INSC 58, wherein the question of an incomplete chargesheet and its impact on the bail plea of an accused was dealt with. It was held that “the pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of CrPC.”

The Court also noted several other pending matters in which a similar question as to the incomplete chargesheet was raised, and in some of them bail was granted, however, in none of the cases the main question was finally determined.

Therefore, considering the diverse views of different Benches of the Court on the question of granting interim bail, the Court opined that a larger Bench may decide the main question as to whether failure on the part of the prosecution to include the FSL report pertaining to the seized contraband article(s) along with the chargesheet, within the time specified in Section 167(2) of the CrPC read with Section 36-A of the NDPS Act, would entitle the accused to default bail or not.

The matter was placed before the Chief Justice of India for considering tagging the present matter with Directorate of Enforcement v. Manpreet Singh Talwar¹, which is still pending before a three-Judge Bench of the Court.

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