Mr. Pratyush Prasanna, Ms. Malvika Kulkarni, Ms. Saumya Yadav, Advocates v. STATE OF NCT OF DELHI

Judgment

1. The present Criminal Revision Petition has been filed by the Petitioner seeking to assail the Order dated 26.09.2023 passed by the learned Additional Sessions Judge-02, New Delhi District, Patiala House Courts, Delhi (hereinafter referred to as the 'Trial Court') rejecting the Petitioner‟s default bail application under Section 36A of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act') read with sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the „Cr.P.C.‟). Signature Not Verified Digitally Signed By:SHAZAAD ZAKIR Signing Date:14.08.2025 18:30:25 CRL.REV.P. 163/2024 Page 1 of 38

2. The facts leading to the present revision petition are as follows:- i. FIR No. 237/2022 was registered at Police Station Special Cell on 04.08.2022 based on credible intelligence inputs and findings during investigation in FIR No. 172/2021. ii. FIR No. 172/2021 pertains to offences under the NDPS Act and resulted in the recovery of approximately 354 kg of heroin, leading to the arrest of 8 accused persons. a. During investigation in FIR 172/2021 a large scale narco-terror conspiracy involving transnational actors and operations was uncovered. b. This conspiracy was found to be co-ordinated by Khalistani secessionists based in Turkey, with logistical support from narco-syndicates operating along the Afghanistan-Pakistan border region, and was controlled by the Pakistan‟s Inter- Services Intelligence (hereinafter referred to as „ISI‟), indicating a deeper, state-sponsored dimension to the narco- terror nexus. iii. On 03.09.2022 during investigation in FIR 237/2022 secret information was received by police that two Afghan nationals, i.e., the Petitioner and his co-accused i.e. Mustafa Stanikzai, had reached Delhi for delivering a consignment to one of their associates at Kalandi Kunj, Delhi. iv. At about 11:00 AM on the same day the Petitioner and his co- accused were apprehended in a metallic grey coloured Skoda Superb Signature Not Verified Digitally Signed By:SHAZAAD ZAKIR Signing Date:14.08.2025 18:30:25 CRL.REV.P. 163/2024 Page 2 of 38 car bearing No. DL 13CQ 7272 near Kalindi Kunj Metro Station, on Kalindi Kunj, Meethapur Road. v. The Petitioner and his co-accused were searched whereafter their car was also searched. vi. From the left side of the front passenger seat, a blue-grey coloured bag (black-packed) bearing a silver metallic logo marked “Justice” was recovered. Upon inspection, a transparent polythene packet containing muddy-coloured granules-cum-powder with a pungent odour was recovered. The packet, upon weighing, was found to contain approximately 1.360 kilograms of substance. The substance was tested using a field testing kit and found to be Heroin. vii. At the instance of the Petitioner, a dark-blue coloured bag bearing a blue and white embroidered logo marked “Seasons” was recovered from the trunk of the vehicle. The bag contained a transparent polythene packet concealed between clothes, which upon weighing were found to contain approximately 1.040 kilograms of substance. The contents, being muddy-coloured granules-cum-powder with a pungent odour, were tested with a field testing kit and tested positive for Heroin. viii. The Petitioner and his co-accused were arrested and their disclosure statements were recorded. As per the story of the prosecution, the Petitioner is an Afghan national who had come to India on a medical visa in the year 2016. He met his co-accused in the year 2019 while working as a translator at Apollo Hospital, Sarita Vihar. Signature Not Verified Digitally Signed By:SHAZAAD ZAKIR Signing Date:14.08.2025 18:30:25 CRL.REV.P. 163/2024 Page 3 of 38 ix. While working at the hospital the Petitioner came in contact with one Haji Sardar, who introduced him to one Haji Musa @ Baba Jani @ Jarar Sahab i.e. an Afghan national currently living in Pakistan. Thereafter, the Petitioner began supplying and delivering narcotics for Haji Musa and would receive a commission for the same. x. On the date of their arrest the Petitioner and his co-accused had come to deliver the recovered consignment to a contact of their handler Haji Musa @ Baba Jani xi. Based on the disclosure statements of the Petitioner and the co- accused the following recoveries were made: S.NO. DATE OF RECOVERY PLACE OF RECOVERY BASIS ON WHICH RECOVERY WAS MADE QUANTITY RECOVERED NATURE OF RECOVERY FIELD TESTING KIT RESULTS 1

03.09.2022 2

03.09.2022 3

04.09.2022 Kalindi Kunj Metro Station in a Car Bearing No. DL 13CQ 7272 registered in the name of Waheedullah i.e. son of the Petitioner SDMC Toll, Kalandi Kunj, White Bolero Maxi Truck Bearing No. UP 41AT 3273 House No 399,H Block, Khadda Colony, Jaitpur, rented by co-accused Mustafa

1. 1) 1.360 Kg Secret Informer

2. 2) 1.040 Kg Both recovered items contained Muddy coloured granules-cum- powder having pungent smell Positive for Heroin

1. 1) 9 bags - 311.415 Kgs

2. 2) 7 bags 277 Statements of the accused persons Not specified Positive for Methamphetamine 1) White coloured powder suspected to be Dextromethorphan 2)Transparent Liquid with HCL written on can Negative for any Narcotic Substance Kgs No quantity specified but 1) Two plastic bags recovered containing white powder 2) Blue container containing HCL 3) One big glass pot allegedly used for refining Statements of the co- accused Mustafa Signature Not Verified Digitally Signed By:SHAZAAD ZAKIR Signing Date:14.08.2025 18:30:25 CRL.REV.P. 163/2024 Page 4 of 38 Heroin Statements of the accused persons Sixteen plastic bags marked G- 1 to G-16 Crystal Powder and coated on dry fruit nuts 1 G-1 positive of methamphetamine 2) G-2 to G-6, G- 8, G-10 to G-12 positive of Heroin 3) G-7 and G-9 negative of any NDPS Statements of the accused persons. 608 plastic bags; 23897.190 Kg White colour Granules Powder All bags tested negative of any NDPS Statements of the accused persons dt. 14.09.2022 23,040 Kg Licorice root (mulethi) coated with dark greyish colour material Positive for Narcotics Drugs 4

04.09.2022 5

05.09.2022 6

15.09.2022 Toyota Etios Car, bearing No. DL ZA 5139, registered in the name of Arifa i.e. wife of the Petitioner, parked in a garage in village Accher, Greater Noida Godown of Md. Gurphan Khan at Village Kushalganj, Lucknow Container bearing No. TNU9140188 in the premises of ASHTE Logistics at Kon Savle Rasayan Road, Panvel, Raigadh, Maharashtra xii. On 28.02.2023 a chargesheet was filed under Sections 21, 25 and 29 of the NDPS Act. The said chargesheet did not contain the Central Forensic Science Laboratory Report (hereinafter referred to as „the CFSL Report’). xiii. Thereafter, the Petitioner filed a default bail application on

16.09.2023 before the learned Trial Court. xiv. On 21.09.2023 a supplementary chargesheet was filed by the investigating agency containing the CFSL Report and the same was taken on record. xv. The learned Trial Court vide order dated 26.09.2023 (hereinafter referred to as „the impugned order‟) dismissed the default bail CRL.REV.P. 163/2024 Page 5 of 38 Signature Not Verified Digitally Signed By:SHAZAAD ZAKIR Signing Date:14.08.2025 18:30:25 application of the Petitioner whereafter he filed the present revision petition.

3. Before adverting to the arguments by both sides, we deem it appropriate to list out some important dates.

04.08.2022 FIR No. 237/2022 registered at Police Station Special Cell.

03.09.2022 Petitioner arrested.

28.02.2023 First chargesheet filed before the learned Trial Court without the CFSL report.

14.09.2023 Default bail application preferred by the Petitioner before the Trial Court

21.09.2023 Supplementary chargesheet containing the CFSL Report was filed by the Respondent.

4. Before the learned Trial Court, the Petitioner advanced a threefold submission. Firstly, he contended that, the prosecution had failed to file the CFSL Report along with the chargesheet, rendering it incomplete. Secondly, he contended that, the Prosecution had exhausted its remedy under the proviso to sub-section (4) of Section 36A of the NDPS Act whereby, upon the discretion of the Court, the statutory period within which a chargesheet is to be submitted can be extended from 180 days up to 1 year from the date of detention and as the Petitioner was in judicial custody since 03.09.2022, accordingly, the outer limit of one year expired on

03.09.2023. Finally, he contended that, in the absence of the CFSL Report the Trial Court could not have ascertained as to whether the seized Signature Not Verified Digitally Signed By:SHAZAAD ZAKIR Signing Date:14.08.2025 18:30:25 CRL.REV.P. 163/2024 Page 6 of 38 substances were in fact contraband and hence, the learned Trial Court could not have taken cognizance of the offence.

5. In the impugned order the learned Trial Court, after discussing the contentions of the Petitioner and Respondent rejected the application of the Petitioner for default bail under Section 36A of the NDPS Act read with sub-section (2) of Section 167 of the Cr.P.C. The learned Trial Court took a view that a complete chargesheet was filed within 180 days i.e. on

28.02.2024 and the accused cannot claim the right of default bail. The learned Trial Court relied on the judgment of this Court in Rahima v. State (NCT of Delhi), 2023 SCC OnLine Del 5882. Further, the learned Trial Court held that the mere absence of CFSL Report at the time of filing of chargesheet does not render the chargesheet otiose and incomplete and at the time of filing of the main chargesheet there was sufficient material for it to take cognizance. The relevant portions of the Order dated 26.09.2023 rejecting the default bail application of the Petitioner read as under :- “11. This Court has relied upon the judgment of the Hon‟ble High Court of Delhi titled as “Rahima Vs. The State GNCT of Delhi, Bail Appln. 2612/2022 dated 21.09.2023”, relevant paras of this judgment are as under:

7. Before proceeding further, it is necessary to advert to the settled law laid down by this court in Kishan Lal (supra), whereby, it has been inter alia held as under: “5. The question raised by the petitioners in a nut shell is whether the investigation of a case under the NDPS Act can be said to be complete in the absence of the report of the Scientific Officer and Signature Not Verified Digitally Signed By:SHAZAAD ZAKIR Signing Date:14.08.2025 18:30:25 CRL.REV.P. 163/2024 Page 7 of 38 is allegedly Chemical Examiner? The contention is that where the accused person possession of or transporting a prohibited drug or substance, mainly two facts have to be established by the prosecution viz., (1) that of recovery of the commodity or substance and possession of the said recovered material is illegal under the provisions of the NDPS Act. It is submitted that the Investigating Officer would be unable to give his opinion regarding the second aspect till he obtains the report of the expert and, therefore, Investigating Officer even if purported to be under Section 173 (2) of the Code, must be held to be based on incomplete investigation. submitted report (2)

6. The learned Single Judge in his reference Order has noticed that the reported cases in which this question has been settled related to offences under the Indian Penal Code. It was urged before him that the principles enunciated in those cases are not applicable to cases involving an offence under the NDPS Act or the old Opium Act or contentions raised in these petitions, we have to notice the case law to some extent to highlight the settled principles. the Excise Act. To appreciate

7. It has been held by the Supreme Court that although the police are not permitted to send an incomplete report under Section 173(2) of the Code, yet the investigation except for the report of an expert like the Serologist or Scientific Officer is complete and, and Chemical Examiner therefore, the Magistrate is empowered to take cognizance of the offence on a police report which does not include the expert's opinion. In Tara Singh v. State, AIR 1951 SC 441, the Police had infact filed a report dated the 2nd October, 1949 terming it an “incomplete challan” and on the 5th Signature Not Verified Digitally Signed By:SHAZAAD ZAKIR Signing Date:14.08.2025 18:30:25 CRL.REV.P. 163/2024 Page 8 of 38 taken at trial was "Supplementary October they filed a report which they called a the 19th “complete challan”. Thereafter on October they filed yet another report which was termed as challan”. The objection Magistrate had no power to take cognizance of the case on 3rd October when the incomplete challan dated 2nd October, 1949 was placed before him. It was contended that the Police are not permitted to file an incomplete report under Section 173(2) of the Code. XXX 19. We thus hold that under Section 173(2) of the Code there is no mandate that a police report must enclose the document purporting to be a report under the hand of a Government scientific expert. In the present cases, as cognizance of the offences taken by the Magistrate was proper and valid, no order releasing the petitioners on bail under Section 167(2) of the Code was required to be passed.”

8. Similarly, in Babu vs. State (supra), this Court inter alia held as under: “18. Though this Court is of the view that the decision of the Division Bench of the Punjab and Haryana High Court is an appropriate opinion in relation to cognizance of an offence under NDPS Act without the FSL report being an illegality, however, bound by the Division Bench decision of this Court, judicial discipline mandates this Court to follow the same. Consequently, in view of the decision of the Division Bench of this Court in Kishan Lal v. State (supra), it is held that the petitioner is not entitled to grant of bail under Section 167(2) CrPC for non-filing of the FSL report along with the charge sheet.”

13. In Judgebir Singh @ Jasbir Singh Samra @ Jasbir & ors. vs. NIA (UAPA) Crl.A.No 1011/2023, the Apex court in the case of NIA after dealing with the Signature Not Verified Digitally Signed By:SHAZAAD ZAKIR Signing Date:14.08.2025 18:30:25 CRL.REV.P. 163/2024 Page 9 of 38