[NDPS] Not filing forensic report does not make chargesheet defective in case of ganja: Karnataka High Court

The Karnataka High Court recently stated that criminal proceedings in a case under Narcotic Drugs and Psychotropic Substances (NDPS) Act cannot be quashed on the ground that the Forensic Science Laboratory (FSL) report was not filed along with the chargesheet (Syed Mohammed vs. Government of Karnataka)..Justice M Nagaprasanna added that the accused in such cases is not entitled to bail as the lack of an FSL report would not make the chargesheet contrary to Section 173(2) (report of police officer on completion of investigation) of the Criminal Procedure Code (CrPC). "The fact that ganja, unlike other synthetic drugs, is recognizable by the substance or identifiable by its smell, texture and structure... Therefore, merely because the charge sheet did not accompany FSL report, the right of the petitioner cannot swing back to contend that he is entitled to bail," the Court held..In the present case, on the basis of information received by the police, the petitioner-accused was intercepted and 60.60 kilograms of ganja (cannabis) was recovered from his car. After investigation, the police filed a chargesheet before the court, after which the petitioner-accused approached the High Court seeking quashing of the entire proceedings and for grant of interim bail. .It was argued on behalf of the petitioner that the chargesheet filed by the police was defective and incomplete, as the contraband substance which was allegedly found had been sent to the Forensic Science Laboratory (FSL) for testing, and the report was not ready. In the absence of the report, the substance which was seized is unidentifiable, and therefore the chargesheet is defective, it was submitted. .On the other hand, the respondent-State submitted that non filing of the FSL report does not vitiate the chargsheet, and that the report can be filed subsequently. Further, a substance such as ganja can be easily identified by its structure and smell, and the FSL report is only a formality. .The High Court noted that the primary issue before it was whether the chargesheet/final report filed by the police is incomplete in the absence of the FSL report, and whether that vitiates the entire proceedings. .For this, the Ccourt examined Sections 167 (procedure when investigation cannot be completed in twenty-four hours) and 173 (report of police officer on completion of investigation) of the Code of Criminal Procedure (CrPC), noting that Section 167(2) provides that an accused person will be entitled to bail if the final report is not filed within 90 days from the date when he is sent to judicial custody. Section 173(8) leaves it open for the police to conduct further investigation, the Court observed. .The Court referred to the judgement of the Bombay High Court in Manas Krishna TK v. State, which held that even if a chargesheet is not accompanied by a field testing report, it cannot be labeled as incomplete simply because it does not have an FSL report. Thus, the petitioner would not be entitled to default bail for this reason, the Court said. .The High Court noted that the FSL report sometimes depends on the nature of the contraband substance. In this particular case, the substance is ganja, which is easily identifiable by its smell, texture and structure. In this regard, the Court referred to the judgment in Sagar Parshuram Joshi v. State of Maharashtra, in which the Bombay High Court, while perusing the handbook of 'Drug Identification and Field Testing' had said:"Natural narcotic drugs like Ganja, Charas, Opium Poppy can be easily identifed by their color, texture and smell. But, most of the drugs abused today are refned and processed substances and are mostly circulated as white, off-white or brown powder, crystals or fakes or colorless odorless liquids. It is very difcult to identify a substance as a drug unless it is tested with different reagents." Thus, ganja unlike other synthetic drugs is recognisable by its smell, texture and structure, the Court noted. So, merely because the chargesheet did not include the FSL report, the petitioner does not have a right to default bail and the proceedings would not have to be quashed. .The High Court, thus, dismissed the writ petition. .Senior Advocate Hashmath Pasha with Advocate Kariappa NA represented the petitioner, and High Court Government Pleader KP Yashodha represented the State. .[Read Order]