ORDER
V.K. Tahilramani, J.
1. Heard the learned Counsel for the Applicant and the learned Counsel for the respondent - NCB.
2. The applicant is seeking bail in NDPS Special Case No. 6 of 2008 of NCB pending before the Special Judge for NDPS cases, Thane. The said case is under Section 29 r/w. 9A and 25A of the Narcotic Drugs and Psychotropic Substances Act, 1985.
3. The prosecution case briefly stated is that specific information was received that one Shahnawaz Khan with the help of two persons including the applicant are manufacturing pseudo-ephedrine which is a controlled substance at Siddiqui Farm House in Thane. When the officers reached the said place, they found the present applicant along with others present there and 290 kgs. of pseudo-ephedrine which is a controlled substance came to be seized from the said place. Prior to seizure, tests were conducted by field test kit by taking small quantity from each packet. The said tests answered positive for presence of pseudo-ephedrine. The applicant-accused came to be arrested on 19.12.2007. He preferred an application for bail before the Special Court. The said bail application came to be rejected by order dated 29.3.2008. Hence, this application.
4. Two grounds were raised by the learned Counsel for the applicant. The first ground is that at the time of filing of charge-sheet the C.A. report was not filed. Thus an incomplete charge-sheet was filed. At the time of filing of charge-sheet as the C.A. report was not filed, there was no material before the learned Judge to come to the conclusion that the substance seized was pseudo-ephedrine and hence the Court could not have taken cognizance of the said case.
5. In order to appreciate the above contention, it would be necessary to give a few dates. The applicant came to be arrested on 19.12.2007. The charge-sheet came to be filed on 13.2.2008. As the offence is made punishable under Section 25A admittedly the charge-sheet would have to be filed within 60 days i.e. approximately on 19.2.2008. Though, the charge-sheet was filed on 13.2.2008 at the time of filing charge-sheet, no C.A. report was filed and the C.A. report dated 28.3.2008 was produced before the Court on 29.3.2008. The bail application preferred by the applicant came to be rejected on 29.3.2008.
6. It is contended by the learned Counsel for the applicant that since the offences registered against the applicant are punishable with a term which may extend to 10 years. The case of the applicant would fall within the ambit of Section 167(2)(a)(ii) of the Code and the accused cannot be detained in custody beyond the period of 60 days from the date of first remand of the applicant i.e. 19.12.2007 if the charge-sheet is not filed within the said period. It is contended that the prosecution ought to have filed the charge-sheet as contemplated under Section 173(2) and (5) of the Code within a period of 60 days. However, in the instant case, though the charge-sheet is filed by the prosecution on 13.2.2008 i.e. within 60 days from the date of first remand of the applicant, the same being incomplete as it was not accompanied with the documents contemplated under Sub-section (5) of Section 173 of the Code, cannot be treated as a charge-sheet/report, which would empower the Court to take cognizance of the offences and hence applicant is entitled to be released on bail in view of provisions of Section 167(2) of the Code.
7. Thus, it was submitted that when the charge-sheet was filed as the C.A. report was not filed, it amounted to filing of an incomplete charge-sheet which cannot be said to be a charge-sheet within the meaning of Section 173(5) of Cr.P.C. and as the charge-sheet, as contemplated under Section 173 of Cr.P.C. was not filed within the stipulated period of 60 days a right accrued to the accused to seek release on bail. In support of this contention, reliance was placed on a decision of a Single Judge of this High Court in the case of Sunil Vasantrao Phulbande and Anr. v. State of Maharashtra reported in 2005 Drugs Cases (Narcotics) 32. The learned Counsel for the applicant pointed out that the said case was also under the NDPS Act. In the said case also within the stipulated time complete charge-sheet was not filed. In the said case, C.A. report was filed beyond the stipulated period of 90 days and prior to that only incomplete charge-sheet with all other papers except C.A. report was filed. In the said case, the accused came to be released on bail on the ground that the C.A. report was not filed within the stipulated time.
8. The learned Counsel for the applicant submitted that in a case under the NDPS Act report of the C.A. is the foundation on the basis of which the Court can proceed to take cognizance of the offence. It was contended that the Chemical Analysers report is the basis to decide whether the substance seized during the raid falls under Section 9A or not, which would determine whether the provisions of NDPS Act are attracted or not. It was further contended that the Magistrate in such situation cannot proceed to take cognizance of the offence for want of complete charge-sheet/report. It was submitted that in the instant case the C.A. report was filed in the Court beyond the period of 60 days i.e. on 29.3.2008 and therefore the prosecution cannot take any advantage in this regard. As the investigating agency failed to file the complete charge-sheet within the stipulated period of 60 days, a right accrued to the accused to seek release on bail under Section 167(2) of Cr.P.C.
9. Reliance is also placed on a decision of another Single Judge of this Court in the case of Sharadchandra Vinayak Dongre and Ors. v. State of Maharashtra reported in 1991 Mh.L.J.656. In the said case, admittedly, an incomplete charge-sheet had been filed. The Court held that the incomplete charge-sheet cannot be treated as a police report within the meaning of Sub-Section (2) of Section 173 of Cr.P.C. and there is no question of Magistrate taking cognizance of the offence within meaning of Section 190(1)(b) of Cr.P.C. on the basis of the incomplete charge-sheet. The said case was under the Bombay Prohibition Act. In this case, admittedly, the charge-sheet was incomplete as it was specifically stated therein that the investigation is not yet completed. Consequently, it was held that incomplete charge-sheet cannot be treated as police-report. However, such is not the case in the present case, hence, this decision cannot apply in the present case.
10. Thereafter, reliance was placed on an unreported decision of a Single Judge of this Court Panaji Bench dated 18.7.1998 in the case of dated 18.7.1998 in the case of dated 18.7.1998 in the case of dated 18.7.1998 in the case of Joaquim M. Correia v. State of Goa passed in Criminal Misc. Application No. 88 of 1998. The said case was under the NDPS Act involving charas. In the said case, the entire charge-sheet having been filed in time, the said decision would not be applicable to the facts of the present case.
11. Reliance was also placed on a decision of a Single Judge of this Court dated 22nd December, 2006 in the case of Ms. Malin Lundberg Isabelle v. Union of India and Anr. in Criminal Application No. 4178 of 2006. The applicant therein was a foreigner who was in custody since 10th May, 2006 for possession of 6534 gms. of Hashish which is a commercial quantity. The accused was produced before the Special Judge on 10th May, 2006. 180 days period expired on 5th November, 2006. However, entire charge-sheet came to be filed on 6th November, 2006. The reason for filing the charge-sheet on 6th November, 2006 was that 5th November, 2006 being a Sunday, the charge-sheet could not be filed on that day hence it was filed on the very next working day i.e. 6th November, 2006. The Court held that as the charge-sheet was not filed within time the applicant was entitled to be released on bail. However, as no such situation has arisen in the present matter, this decision too would not be applicable to the facts of the present case.
12. On the backdrop of above facts and decisions, the question which arises for my consideration in the present case is whether mere filing of charge-sheet within the prescribed time, unaccompanied by material papers as contemplated under Section 173(5) of the Code renders it incomplete and such filing of charge-sheet amounts to failure to file the same, which in turn confers on the accused right to be released on bail under Section 167(2) of the Code, as the Court would not be competent to take cognizance of the offence on the basis of such incomplete charge-sheet/report. 13. On perusal of all the decisions, it is seen that in the said cases there is no reference to test of the contraband at the spot by field test kit. In the present case, the complaint as well as panchnama specifically mention about field testing kit being taken to the spot and the samples of the seized material being tested at the spot using field testing kit and the test answering positive for pseudo-ephedrine. In Sunil Phulbandes case (supra) which is a case similar to the present case, there is no reference at all to any test kit report.
14. Useful reference may be made to the decision of the Supreme Court in the case of Jagdish Budhroji Purohit v. State of Maharashtra reported in AIR 1998 SC 3328. In the said case, it was contended that Chemical Analysers report Exh.61 to 67 were not admissible in evidence. The Supreme Court observed that:
Moreover, in this case the prosecution had led evidence on P.W.1 Vijay Kumar Shahasane and P.W.3 Sidram Dhange, members of the raiding party, to prove that the powder which was found from the factory was Methaqualone and that the tablets which were found from the factory were methaqualone tablets. Both of them have stated that they have received sufficient training and thus have sufficient knowledge about narcotic substance and the methods of testing them. They had carried with them a kit for the purpose of testing when they had raided the factory. On analysis by them the powder was found to be methaqualone and tablets were found containing methaqualone. Therefore, even if Exhibits 61 to 67 are ignored there is sufficient evidence on record to show that methaqualone powder and tablets were found from the appellants factory. Thus the appellants conviction under Section 22 of the N.D.P.S. Act is quite proper. Both the witnesses have further stated that on analysis the green substance which was found from one of the cabins was hashish.
Therefore, conviction of the appellant under Section 20(b)(ii) of the N.D.P.S. Act is also quite proper.
15. From the above decision, it is seen that even if there is any lacuna in the C.A. report the report of the field testing kit conducted by the officers can be relied upon to convict the accused. If the report of the field testing kit can be relied upon to convict the accused then in the present case where similar test was conducted it cannot be said that an incomplete charge-sheet was filed on 13.2.2008. The charge-sheet forwarded to the Court on that day contained material which was sufficient for the Court to take cognizance of the offence. The material before the Court was sufficient for the Court to proceed further and to take cognizance as the material on record on that day clearly showed that 290 kgs. of pseudo-ephedrene came to be seized and the involvement of applicant and other accused was also seen from the material in the charge-sheet filed on 13.2.2008.
16. In the case of Sunil Phulbande (supra) this Court observed that 'The charge-sheet / report as contemplated under Section 173(5) of the Code, forwarded to the Magistrate should be such that on the basis of which Magistrate should be able to proceed further and take cognizance.' It was further observed that in a given case, certain documents even though they may not accompany the charge-sheet may not change the nature of the charge-sheet/report contemplated under Section 173(2) and (5) of the Code particularly when the material is sufficient for the Court to take cognizance of the offence as per the provisions of the Code. In the present case, on 13.2.2008 there was sufficient material before the Court to take cognizance. Moreover, the C.A. report which was produced on 29.3.2008 was not such as to change the nature of the charge-sheet in this case.
17. In the present case the material at the time of filing of the charge-sheet on 13.2.2008 clearly showed that 290 kgs. of pseudo-ephedrine was found and the applicant was very much present in the farm house where the pseudo-ephedrine was found. Thus, at the time of filing charge-sheet the accused was made aware of the exact nature of the offence alleged against him, so also the Court was aware of the exact nature of the offence alleged against the accused. Thus, there is no question of causing any prejudice to the accused. In the present case, the applicant has not contended that he has been prejudiced in any manner as the C.A. report was not filed along with the charge-sheet. No such pleading infact has been taken by the applicant. As observed earlier, there was sufficient material before the Court and also made known to the accused regarding the prosecution case against the accused.
18. Useful reference may be made to the decision of the Supreme Court in the case of Dinesh Dalmia v. CBI reported in (2008) 1 SCC (Cri) 36. In the said case also an incomplete charge-sheet came to be filed. In the said case, it was observed that:
It is true that ordinarily all documents accompany the charge-sheet. But, in this case, some documents could not be filed which were not in the possession of CBI. As indicated hereinbefore, the said documents are said to have been filed on 20.1.2006 whereas the appellant was arrested on 12.2.2006. The appellant does not contend that he has been prejudiced by not filing of such documents with the charge-sheet. No such plea in fact had been taken. Even if all the documents had not been filed, by reason thereof submission of charge-sheet itself does not become vitiated in law.
19. Indisputably, the power of the Investigating Officer to make a prayer for making further investigation in terms of Sub-Section (8) of Section 173 is not taken away only because a charge-sheet under Sub-Section (2) thereof has been filed. A further investigation is permissible even if order of cognizance of offence has been taken by the Magistrate. In the case of Dinesh Dalmia (supra), it has been further observed that:
We may notice that a Constitution Bench of this Court in K. Veeraswami v. Union of India stated the law in the following terms : (SCC p.716, para 76)76...As observed by this Court in Satya Narain Musadi v. State of Bihar that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the Magistrate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Section 173(2) purports to be an opinion of the investigating officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). Nothing more need be stated in the report of the investigating officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evidence.
20. The charge-sheet is an intimation to the Magistrate that upon investigation into a cognizable case the investigating officer has been able to procure sufficient evidence for the Court to enquire into the offence and the necessary information is being sent to the Court. A charge-sheet is a final report within the meaning of Sub-section (2) of Section 173 of the Code. It is filed so as to enable the Court concerned to apply its mind as to whether cognizance of the offence thereupon should be taken or not. The report is ordinarily filed in the form prescribed therefor. One of the requirement for submission of a police report is whether any offence appears to have been committed and, if so, by whom. In this case from the material available before the Court on 13.02.2008, it was clear that an offence had been committed under Section 25 of the NDPS Act and the applicant was involved in the offence.
21. In the case of Central Bureau of Investigation v. R.S. Pai and Anr. reported in : 2002CriLJ2029 , it was observed that
it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or charge-sheet, it is always open to the Investigating Officer to produce the same with the permission of the Court.' It was further observed that 'the word shall used in Sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Further, the scheme of Sub-section (8) of Section 173 also makes it absolutely clear that even after the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to investigation. In such cases, there cannot be any prejudice to the accused.
Thus, it is seen that though the Investigating Officer is required to produce all the relevant documents at the time of submitting the charge-sheet, at the same time there is no specific provision due to which no additional documents can be produced subsequently by the investigating agency.
22. A Full Bench of the Punjab and Haryana Court in the case of State of Haryana v. Mehal Singh and Anr. reported in has held that when a charge-sheet is submitted without the reports of experts well within the period of 60/90 days from the date of arrest, merely because the report of the expert was not filed along with it, the accused is not entitled to be released on bail under Section 167(2) of Cr.P.C. In the said case it was observed that:
The investigation of an offence cannot be considered to be inconclusive merely for the reason that the investigating officer, when he submitted his report in terms of Sub-section (2) of Section 173 to the Magistrate, still awaited the reports of the experts or by some chance, either inadvertently or by design, he failed to append to the police report such documents or the statements under Section 161 of the Code, although these were available with him when he submitted the police report to the Magistrate. Therefore, when a charge-sheet is submitted without the reports of experts well within the period of 60 days from the date of arrest, the accused is not entitled to be released on bail under Section 167(2).
It was further observed that:.Since a report to qualify itself to be a police report is required to contain only such facts as are mentioned in Sub-section (2) of Section 173, so if once it is found that the police report contained all those facts, then so far as the investigation is concerned the same has to be considered to have been completed. It is not incumbent on the investigating officer to reduce in writing the statements 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 as 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 recorded 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. So far as the investigation part of the job of the investigating officer is concerned, it is complete the moment he had collected all evidence and facts that are detailed in Sub-section (2) of Section 173 and from the evidence thus collected he is satisfied that the case deserves to be initiated against the accused. And further 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 despatches the material for the opinion of the expert and incidentally cites him as a witness if he relies on his testimony.
23. From the decisions referred to above, including that of the Supreme Court, it is clear that it is open to the investigating agency to file further documents even after the charge-sheet has been filed. In the present case, as stated earlier, samples in question were tested on the spot and on testing the report showed that the material was pseudo-ephedrine which is a controlled substance. When the charge-sheet was filed on 13.2.2008, it contained all necessary material as contemplated under Section 173(5) of Cr.P.C. and the prosecution is not precluded from filing any additional material like the C.A. report at a later stage. Filing of C.A. report has not changed the nature of the offence or the charge-sheet. Thus, there was sufficient material to connect the accused with the offence and there was sufficient material before the Court on 13.2.2008 to take cognizance of the offence. In the present case even though the report of the C.A. was not filed, it cannot be said that an incomplete charge-sheet has been filed and hence the learned Magistrate could not have taken cognizance. Looking to all these facts, I am of the opinion that the applicant is not entitled to bail under the provisions of Section 167(2) of Cr.P.C.
24. The second ground canvassed before me is that there is an amendment to the NDPS Act including Section 37. In cases of offences under Section 19 or 24 or 27A and offences involving commercial quantity an accused would not be released on bail unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence. The present applicant is facing prosecution for charges under Sections 25A and 29 read with 9A of the N.D.P.S. Act and hence obviously his case would not be covered under Section 37 of the NDPS Act. Moreover, as far as Section 9A which deals with controlled substance is concerned, there is no categorisation of small quantity or commercial quantity. Therefore, it was contended by the learned Counsel for the applicant, and in my view rightly so, that the concept of commercial quantity is applicable only to narcotic drugs and psychotropic substances and not to controlled substances.
25. Section 9A of the NDPS Act deals with the power to control and regulate controlled substance. 'Controlled substance' means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any international Convention, by notification in the official Gazette, declare to be a controlled substance. The Ministry of Finance Department of Revenue vide its notification dated 28th December, 1999 has declared pseudo-ephedrine a controlled substance under the Act. The Central Government being of the opinion that having regard to the use of the controlled substances in the production or manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, in exercise of powers conferred by Section 9A of the Act has made the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substance) Order, 1993, which has come into force w.e.f. 15th April, 1993.
26. A controlled substance is not necessarily used only to make narcotic drugs or psychotropic substance, but, it is a versatile substance which can be used in manufacturing of various things including innocuous medicines by the pharmaceutical industry. As far as controlled substances are concerned, there is no provision for minimum term of imprisonment unlike Sections 19, 24 and 27A of the N.D.P.S.Act.
27. In the decision of this Court in the case of Shreeniwas Bansidhar Somani v. The Intelligence Officer NCB and Anr. dated 14th February, 2002 in Criminal Application No. 181 of 2002, 1250 kgs. of Acetic Anhydride came to be seized which is a controlled substance. Acetic Anhydride is used to manufacture brown-sugar i.e. heroin. In the said case, this Court held that Acetic Anhydride being a controlled substance, rigors of Section 37 of NDPS Act would not be attracted and bail came to be granted to the accused in the said case. It is pointed out that the quantity of the controlled substance in the present case is lesser than the quantity in the case of Shreeniwas Bansidhar (supra) and hence the applicant is entitled to be released on bail.
28. There is extensive amendment introduced in N.D.P.S. Act. The offence falling under Section 9A r/w. Section 25A is punishable with imprisonment which may extend to 10 years and also fine which also may extend to Rs. 1 lakh. There was an embargo on the powers of the Court in granting bail under the old provisions of Section 37(1)(b) of the Act. From Section 37(1)(b) the term 'imprisonment of 5 years or more' has been deleted and substituted by 'for offence under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity', the case of the applicant is no more covered by Section 37(1)(b) of the Act. The concept of commercial quantity does not apply to controlled substance in view of the provisions relating to commercial quantity specially Section 2(viia) and Section 2(viid) of the Act and the notification issued by the Government specifying the small quantities and commercial quantities also shows that this concept is peculiar to Narcotic Drugs and Psychotropic Substances.
29. In view of the above legal position and the decision in the case of Shreeniwas Bansidhar Somani (supra), I am inclined to grant bail to the applicant.
30. The applicant - Rafael Palafox Garcia to be released on bail in the sum of Rs. 1,00,000/ (Rs. One Lakh Only) with one or two sureties to make up the said amount. The sureties shall be local sureties. Before being released on bail the applicant shall inform the NCB office the address at which he will reside during the period that he is on bail. Any change in the address shall also be communicated to the NCB within two days. The applicant shall report to the NCB office once in a week, till conclusion of the trial.
31. Criminal Application is disposed of accordingly.