Supreme Court to examine whether NDPS accused can get default bail when chargesheet filed sans FSL report

The Supreme Court recently referred to a larger bench the question of whether an accused under the Narcotic Drugs and Psychotropic Substances (NDPS) Act would be entitled to default bail in case the chargesheet does not have the forensic report with it [Hanif Ansari v. State Govt of NCT of Delhi]..A bench of Justices Anirudhha Bose and PV Sanjay Kumar noted that different benches of the top court had taken different views even on the aspect of granting interim bail to accused in such cases."We are of the opinion that a larger Bench may decide the 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 Code read with Section 36A of the NDPS Act, would entitle the accused to default bail or not," the bench observed in its order of March 19. .The reports of Forensic Science Laboratory (FSL) are essential to the NDPS Act cases as they provide the information about the type of drugs recovered from the accused.The question whether to consider the chargesheet filed by prosecution without FSL reports as complete or incomplete has grappled the High Courts as well in the past.The Punjab and Haryana High Court had in November last year granted default bail to three persons accused in a drugs case on the ground that the report of the Forensic Science Laboratory (FSL) was not submitted by the police along with its charge sheet.However, the Delhi High Court in January this year by separate orders rejected the plea for default bail of two accused who had argued that the chargesheets were incomplete as the FSL report had not been filed with them. Justice Jyoti Singh in one of the orders had noted that the no general directions have been passed by the Supreme Court for grant of default bail in case of charge- sheet being filed without FSL report in NDPS cases. .The issue before the top court came up in a case challenging an order from the Delhi High Court where a single-judge had refused to accept the argument that the accused would be entitled to default in case the charge sheet is filed without an FSL report. During the hearing of the petition on March 19, the Supreme Court bench of Justices Bose and Justice Kumar took note of two conflicting orders of the Supreme Court. While in one of them, an NDPS Act accused had been granted interim bail, a co-ordinate bench in the other judgment had held that pendency of some documents at the time of filing of chargesheet would not entitle the accused to claim default bail on the ground that the chargesheet was incompleteThe Court also noted that similar questions of law was pending before a larger bench. Accordingly, it referred this matter also for a larger bench decision."Let this case be placed before the Hon’ble the Chief Justice of India for considering tagging this matter with SLP(Crl.) No. 5724 of 2023," it ordered..Advocates Akshay Bhandari, Ashish Batra, Anmol Sachdeva, and Megha Saroa appeared for the accused, one Hanif Ansari.Additional Solicitor General KM Nataraj with advocates Mukesh Kumar Maroria, Kanu Agarwal, BK Satija, Sharath Nambiar, Raman Yadav, Madhav Sinhal, Divyansh H Rathi, and TS Sabarish appeared for the Delhi Police..On a related note, the Supreme Court on April 26 in 2023 had ruled that default bail under the Criminal Procedure Code (CrPC) is an important right and it cannot be scuttled by filing incomplete chargesheets.However, another bench later in an interim order had directed the courts to defer applications filed based on the April 2023 verdict after the Central government sought a recall of that decision..[Read order]