JUDGMENT

MAHESH GROVER, J. –

1. By this order we shall answer the common question sent up to us in these seven cases the details of which have been given above.

2. We have been called upon to answer the question set out below :-

“Whether the presentation of report under Section 173(2) Cr.P.C. by the police without the report of Chemical examiner/Forensic Science Laboratory amounts to incomplete challan and in the absence of any extension of time under Section 36-A(4) of the N.D.P.S. Act, the accused is entitled to bail under Section 167(2) Cr.P.C. ?”

3. The learned Single Judge framed two questions in his order dated 28.1.2016 which we also set down here below :-

“1. Whether the presentation of report under Section 173 (2) Cr.P.C. by the police without the report of chemical examiner/FSL amounts to incomplete challan and in the absence of any extension of time under Section 36A (4) of the NDPS Act, the accused is entitled to bail under Section 167(2) Cr.P.C. ?

2. If the reply is in the affirmative, then what is the position regarding commonly used substances like opium and poppy husk etc., which can be easily identified by the police officer from visual inspection, smell or taste ?”

4. Shri R.S.Cheema, Senior Advocate was appointed as an Amicus.

5. We have heard the matter.

6. There has been conflict of sorts and contradictory judgments have emerged on the afore mentioned question. The learned Single Benches have held that the report under Section 173 Cr.P.C. submitted without the Chemical Examiner's report would be inconclusive and after the expiry of the statutory period, the accused would be entitled to the benefit of bail under Section 167(2) Cr.P.C. in that eventuality. A few judgments where such a view has been propounded are mentioned here below :-

(1)   Siya Ram v. State (U.T.) Chandigarh 2009(1) R.C.R. (Criminal) 58.

(2)   Sukhchain Singh v. State of Punjab 2015(4) R.C.R. (Criminal) 518 (Cr.M.M-15041 of 2014).

(3)   Gurpal Singh and others v. State of Punjab (Criminal Revision No.791 of 2016).

(4)   Ravinder v. State of Haryana 2015(4) R.C.R.(Criminal) 518 (Cr.M.M-28367 of 2014) decided on 26.9.2014.

7. A contrary view has been expressed in the following cases :-

(i)    Nirmal Singh alias Kala v. State of Punjab (Criminal Misc. No.9411 of 2015).

(ii)    Kulwinder Singh v. State of Punjab (Criminal Misc. No.23782 of 2015).

8. It would be important to refer to the provisions of law and Sections 173(1),(2),(5) are extracted here below :-

“173. Report of police officer on completion of investigation.- (1) Every investigation under this Chapter shall be completed without unnecessary delay.

(1-A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer-in-charge of the police station.

2(i)   As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating –

(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 has been released on his bond and, if so, whether with or without sureties ;

(g)   whether he has been forwarded in custody under section 170 ;

(h)   whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C, 376D or section 376E of the Indian Penal Code (45 of 1860).

(ii)    The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

...                          ...                                 ...

(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.”

9. One of the first judgments that strikes the chord on the question of a police report as envisaged in the afore-extracted provisions of law, is the State of Haryana v. Mahal Singh and others 1978 P.L.R. 480. While basing its reasoning on the judgment of the Hon'ble Supreme Court in Tara Singh v. The State A.I.R. 1951 S.C.441, the Full Bench observed as under :-

“When the police drew up their challan on 2.10.1949 and submitted it to the Court on the 3rd, they had in fact completed their investigation except for the report of the Imperial Serologist and drawing of the sketch map of the occurrence. It is always permissible for the Magistrate to take additional evidence not set out in the challan. Therefore, the mere fact that a second challan was put in on 5th October would not necessarily vitiate the first. All that S.173(1)(a) requires is that as soon as the police investigation under Chap.14 of the Code is complete, that should be forwarded to the Magistrate a report in the prescribed form.”

10. It refers to the definition of the police report as contained in Section 2(R) of the Cr.P.C. - “police report means a report forwarded by a police officer to a Magistrate under sub-section(2) of Section 173”.

11. The Full Bench concluded as below :-

“From the above observations of their Lordships of the Supreme Court it is clearly deducible that it is not incumbent on the investigating officer to reduce in writing the statement of the witnesses he may merely include their names in the list of witnesses in support of the prosecution case when submitting the charge-sheet. Surely, if the charge-sheet thus submitted would be complete enabling the Magistrate to take cognizance of the offence, there is no rational basis for holding that similar charge-sheet would not be a police report of the requisite kind if the statements of the witnesses although had been under section 161(3), but either by design or by inadvertence are not appended with the report and that the investigation of the case for that reason alone would be considered to be incomplete thus entitling the accused to claim release on bail in view of the proviso to sub-section (2) of section 167 of the Code if his detention had exceeded sixty days.

16. In view of the above conclusion, the accused would be on still a weaker ground in canvassing that the report, which did not include the report of the experts such as Chemical Analyst, Serologist, Ballistic Expert, finger Print Expert etc. would not be a complete police report envisaged in sub-section (2) of section 173 of the Code, which in terms is prepared and submitted only after the completion of the investigation. So far as the investigation part of the job of the investigating officer is concerned, it is complete if he has collected all evidence and facts that are detailed in subsection (2) of section 173 of the Code and from the evidence thus collected he is satisfied that the case deserves to be initiated against the accused. And, even if the investigating officer had not received the report of the expert, so far as his job of collecting of the evidence is concerned, that is over the moment he dispatches the material for the opinion of the expert and incidentally cites him as a witness if he relies on his testimony.”

12. Evidently, the Court while making the afore-extracted observations, did so while strictly interpreting the provisions and scope of the Cr.P.C. and in the backdrop of general offences confined to the I.P.C. or some other statutes but was not seized of a Special Act as the N.D.P.S. Act, which though brings out the same conflict in view of certain provisions contained therein but is lending a new dimension that demands an answer through an incisive insight to the provisions of the Act despite the authoritative pronouncement of the Full bench in State of Haryana v. Mahal Singh and others (supra) and that of the Hon'ble Supreme Court in Tara Singh's case (supra).

13. It would be necessary to refer to Section 36A(4) of the N.D.P.S.Act which is extracted here below :-

“36A. Offences trial by Special Courts.- ....

...                               ...                                 ...                                 ...

(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the reference in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”.

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period upto one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.”

14. Sections 19, 24 and 27-A of the N.D.P.S. Act are also extracted here below :-

“19. Punishment for embezzlement of opium by cultivator.- Any cultivator licensed to cultivate the opium poppy on account of the Central Government who embezzles or otherwise illegally disposes of the opium produced or any part thereof, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

Provided that the Court may, for reasons to be recorded in the judgment, impose a fine extending two lakh rupees.

...                               ...                                 ...

24. Punishment for external dealings in narcotic drugs and psychotropic substances in contravention of section 12.- Whoever engages in or controls any trade whereby a narcotic drug or a psychotropic substance is obtained outside India and supplied to any person outside India without the previous authorization of the Central Government or otherwise than in accordance with the conditions (if any) of such authorization granted under section 12, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but may extend to two lakh rupees :

Provided that the Court may, for reasons to be recorded in the judgment, impose a fine extending two lakh rupees.”

...                   ...                                 ...

27A. Punishment for financing illicit traffic and harbouring offenders.- Whoever indulges in financing, directly or indirectly, any of the activities specified in subclauses (i) to (v) of clause (viii a) of section 2 or harbors any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees :

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

15. Evidently, the Legislature had envisioned various sorts of offences under the Act to prescribe and afford different periods of investigation to the Investigating Officer.

16. The very fact that it grants an immense flexibility of period to the investigation is the acknowledgment of the probability of investigation not being completed looking at the complexities that the investigation may have to go into to establish a cognizable case against the accused. It is for this reason that a period of 180 days has been provided to the investigating agency in the first instance with powers to the Special Court to extend it upto one year on a report of the Public Prosecutor, apprising the Court of the progress of investigation and disclosing to it specific reasons for detention of an accused beyond the period of 180 days.

17. Evidently, if the Public Prosecutor fails to seek extension from the Court before the expiry of 180 days, it would result in an indefeasible right accruing to the accused under Section 167(2) Cr.P.C.

18. It would be apposite to refer to the order of the learned Single Judge contemplating two situations that may arise :-

(1) Where the contraband so recovered is not apparent to the naked eye or could not be alive to common/special knowledge of the Investigating Officer. To put it in other words, only an expert report can establish the fact of existence of a contraband.

(2) Where the contraband so recovered is apparent to the naked eye or police, the investigation authority may have some common/special knowledge of the recovered articles.

19. Before we proceed with the matter, one needs to understand the meaning of the word 'cognizance'. Sections 190 to 195 of the Cr.P.C. are extracted here below :-

“190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence –

(a)    upon receiving a complaint of facts which constitute such offence ;

(b)    upon a police report of such facts ;

(c)   upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

STATE AMENDMENT(PUNJAB)

190-A. Cognizance of offences by Executive Magistrates.- Subject to the provisions of this Chapter any Executive Magistrate may take cognizance of any specified offence –

(a)    upon receiving a complaint of facts which constitute such offence ;

(b)   upon a police report of such facts ;

(c)   upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

191. Transfer on application of the accused.- When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.

STATE AMENDMENT(PUNJAB)

In relation to the specified offences, section 191 of the Code shall be so read as if for the words, brackets and figures “clause (c) of sub-section (1) of section 190”, the word figures and letter “section 190A” were substituted and for the word “Magistrate” wherever occurring, and the words “Chief Judicial Magistrate” the words “Executive Magistrate” and “District Magistrate”, respectively, were substituted.

192. Making over of cases to Magistrates.- (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.

(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.

STATE AMNENDMENT(PUNJAB)

In relation to the specified offences, section 192 of the Code shall be so read as if for the words “Chief Judicial Magistrate”, and the words “Magistrate of the first class”, or “Magistrate” wherever occurring, the words “District Magistrate” and “Executive Magistrate”, respectively, were substituted.

193. Cognizance of offences by Courts of Session.- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.

194. Additional and Assistant Sessions Judges to try cases made over to them.- An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order direct him to try.

195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- (1) No Court shall take cognizance –

(a)    (i)    of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii)    of any abetment of, or attempt to commit, such offence, or

(iii)   of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate ;

(b)   (i)    of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199,200, 205 to 211 (both inclusive) and 228 when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii)   of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii),

except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate.

(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court, and upon its receipt by the Court, no further proceedings shall be taken on the complaint :

Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term “Court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate :

Provided that –

(a)   where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate ;

(b)   where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

195A. Procedure for witnesses in case of threatening etc.- A witness or any other person may file complaint in relation to an offence under section 195A of the Indian Penal Code (45 of 1860).”

20. In State of West Bengal and another v. Mohd.Khalid 1995(1) SCC 684 it was observed by the Hon'ble Supreme Court in para-43 as follows :-

“43. Then, the question is as to meaning of taking cognizance. Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons.”

21. In State of Maharashtra v. Sharadchandra Vinayak Dongre and others 1995(1) S.C.C.42, it was observed by the Hon'ble Supreme Court as under :-

“7. 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.P.C. 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 offence.”

22. What flows from the above is that when a report is submitted by the police to the Magistrate, he ought to apply his mind to see whether it discloses the commission of an offence, so as to enable it to subject the accused to the rigors of a trial.

23. What would also necessarily flow from this, would be a prima facie opinion by the Court of the commission of an offence which under the N.D.P.S. Act would revolve around establishing the possession of contraband, its nature, content and extent.

24. With respect to the question posed by the learned Single Judge regarding some of the contraband being identifiable through naked eye, inspection based on experience and knowledge, would be a great fallacy and we would respectfully state that it would be grossly unsafe to rely upon such an opinion based on naked eye inspection backed by experience or knowledge to arrive at a prima facie opinion of the commission of an offence to submit an accused to the rigors of trial by the Magistrate in the exercise of its powers under Section 190 Cr.P.C.

25. The only way that it can be done is to establish the nature of contraband on the basis of the Chemical Examiner's report and for this reason, the Chemical Examiner's report assumes an immense significance for the trial Court, to formulate an opinion as the very cognizance of an offence would depend on it. Non-inclusion of the Chemical Examiner's opinion in the report under Section 173 Cr.P.C. would expose the accused to unfounded dangers imperiling and endangering his liberty since the provisions of the N.D.P.S. Act in its applicability to a trial and conclusion are stringent in consequence.

26. For this reason as well, it is essential that the report of the Chemical Examiner be included in the report under Section 173 Cr.P.C. and without which it can at best be termed to be an incomplete challan depriving the Magistrate of relevant material take cognizance and if it is not submitted within the requisite period of 180 days, it would essentially result in a default benefit to the accused unless an application is moved by the Investigating Agency apprising the Court of status of investigation with a prayer for extension of time to the satisfaction of the Court.

27. We emphasize on the stringent aspect of the N.D.P.S. Act which would compellingly persuade us to take the aforesaid view. Without determining the nature and content of the contraband, it would be draconian to propel an accused into the throes of a trial. The liberty of an individual would constantly be imperiled at the hands of dubious officials of the police who may venture to falsely implicate a person.

28. It is for this reason that we would unhesitatingly conclude that the Chemical Examiner's report is an essential ; integral and inherent part of the investigation under the N.D.P.S. Act as it would lay the foundation of an accused's culpability without which a Magistrate would not be enabled to form an opinion and take cognizance of the accused's involvement in the commission of offence under the Act.

29. We are conscious of the fact that these issues have arisen largely on account of the inability of the State to provide the Chemical Examiner's report in time ostensibly for the reason that it is not equipped with enough laboratories to examine the contraband but for that, it is the State which has to be faulted and it would do well to hone up its own infrastructure so that the accused who deserves punishment, does not get the benefit of law and go scot free and gain access to a undeserving liberty.

30. The State should also sensitize their Investigation Officers to make an application for extension of time to submit the report in the prescribed period so as to obviate any chances of an accused getting benefit of the default clause.

31. We, therefore, answer the reference as above.

32. List all the cases before Single Bench appropriately as per roster.

Reference answered.

********