ORDER
B.R. Arora, J.
1. The petitioner, alongwith his wife and one Tapsu, was arrested in connection with an FIR lodged against them on 14-3-94 at Police Station, Pratabgarh, pertaining to the offences under Sections 8/12, 8/18, 25,29, 8A read with Sections 18 and 25 A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'the Act'). After his arrest on 19-3-94, on his information and at his instance, two Jericans of five litres each, containing 'acetic Anhydride', which is one of the components in the manufacture of brown sugar, and some other materials were recovered from the possession of the petitioner in the presence of the Motbir witnesses. According to the prosecution, this acetic Anhydride, which is used for the manufacture of brown sugar, was supplied by the petitioner to the persons, including co-accused Tapsu, for manufacturing brown sugar. The police, after necessary investigation, submitted the charge-sheet against the accused under Section 173(2) Cr. P. C. The learned Magistrate took cognizance and proceeded with the trial. The petitioner moved an application under Section 437 Cr. P. C. for the grant of bail before the learned Sessions Judge, Pratabgarh, who, by his order dated 20-7-94, dismissed the bail application filed by the petitioner by holding that at this stage it cannot be said that the petitioner is not guilty for the offence and, therefore, he cannot be released on bail in view of the provisions of Section 37 of the NDPS Act. It is against this order, rejecting the bail application filed by the petitioner, that the petitioner has moved this bail application and prayed for his release on bail during the pendency of the trial.
2. It is contended by the learned counsel for the petitioner that the police, while submitting the charge-sheet under Section 173(2) Cr. P. C., has not filed the FSL report and in the absence of the FSL report, it cannot be said that the articles recovered from the petitioner, can be covered under the provisions of the Act and in the absence of the FSL report, the charge-sheet submitted by the police cannot be said to be a 'charge-sheet' as envisaged under Section 173(2) Cr. P. C. and as such, as per the provisions of Section 167(2), the petitioner is entitled to be released on bail. The learned Public Prosecutor, on the other hand, has submitted that the charge-sheet submitted by the police against the petitioner is a complete one and an additional document can be filed under Section 173(8) Cr. P. C. and as the charge-sheet has been submitted against the accused-petitioner, the provisions of Section 167(2) Cr. P. C. are not applicable in the case and the petitioner is not entitled to be released on bail.
3. I have considered the submission made by the learned counsel for the parties.
4. Section 173 deals with the report of police officer on completion of investigation. Sub-section (2) of Section 173 provides that as soon as the investigation is completed, the Officer Incharge 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 the names of the parties; the nature of the information; the names of the persons who appear to be acquainted with the circumstances of the case; whether any offence appears to have been committed and, if so, by whom; whether the accused has been arrested, whether he has been released on his bond and, if so, whether with or without sureties; and whether he has been forwarded in custody under Section 170 Cr. P. C. and the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. Sub-section (5) of Section 173 Cr. P. C. provides that along with the report, the investigating officer shall forward all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses... A reading of sub-sections (5) and (2). of Section 173 Cr. P. C., thus, provides that after the completion of the investigation the investigating officer shall send the result of the investigation along with his report and the documents collected and the evidence recorded under Section 161 Cr. P. C. After the submission of the report by the investigation officer under sub-section (2) of Section 173 Cr. P. C., the Magistrate can proceed with the case and on the basis of the report, he can take cognizance and proceed with the trial. The investigating officer, in the present case, has submitted the report and on the basis of that report, cognizance against the petitioner and other co-accused was taken by the learned Magistrate and the charges were framed and the prosecution was directed to produce the evidence. Merely because the FSL report has not been submitted, the charge-sheet submitted by the investigating agency cannot be said to be an 'incomplete charge-sheet', as argued by the learned counsel for the petitioner. The charge-sheet fulfills all the requirements of Section 173(2) Cr. P. C. and merely because the FSL report has not been submitted, it. cannot be said that the charge-sheet is a defective one or an incomplete one. When once the charge-sheet has been submitted, the provisions of Section 167 Cr. P. C. ceases to apply. The accused has no indefeasible right under Section 167(2) when once the challan has been filed against him. After the challan is filed, the question of grant of bail has to be considered and decided only with respect to the merit of the case and the accused cannot claim to be released on bail under Section 167(2) Cr. P. C. after filing of the challan.
4A. There is a second aspect of the case, also. sub-section (8) of Section 173 Cr. P. C. authorises the investigating agency to further investigate the matter even after the charge-sheet is submitted and if during the further investigation the investigating agency obtains further evidence - oral or documentary - it can forward the same to the Magistrate along with further report regarding such evidence in the form prescribed and the Court can consider that evidence, also. Further investigation by the police after submission of the report and taking the cognizance is not barred. This position of law was recognised by the Law Commision in its 41 -- report and, therefore, it recommended for making such provisions in the Code of Criminal Procedure. While making such recommendation, the Law Commission, in its 41-Report, said:-
'A report under Section 173 is normally the end of the investigation. Some times, however, the police officer after submtting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and sent it to the Magistrate concerned. It appears however, that Courts have some times taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused.'
Accordingly, in the Criminal Procedure Code, 1973, a new provision, Section 173(8) was introduced and it says:-
'Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section.(2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).'
It has been held by the Apex Court in the case of : Ram Lal Narang v. The State (Delhi Administration) : 1979CriLJ1346 that:-
'Notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to lightxxxxxxxxx. Neither Section 173 nor Section 190 lead to say that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permits repeated investigations on discovery of fresh facts.'
The provision has been enacted in view of the practical necessity of the police to make further investigation and to submit a supplementary report. It was considered necessary in the interest of both the prosecution as well as the defence and, therefore, the right of the police to further investigate the matter has been statutorily recognised and, therefore, the FSL report can be submitted even after filing of the challan and the challan presented by the investigating agency along with its report without the FSL report cannot be said to be an incomplete charge-sheet or not in conformity with the provisions of Section 173(2) Cr. P. C. and fulfils all the requirements. The contention, raised by the learned counsel for the petitioner is therefore, devoid of any force.
5. In view of the provisions of Section 37 of the Act, bail can be granted to the accused if the Court is satisfied that he is not guilty of such offence and that he is not likely to commit any such offence while on bail. In the present case, ten litres of acetic Anhydride was recovered on the information supplied and at the instance of the petitioner. This acetic Anhydride is used for the manufacture of brown sugar. At this stage, from the evidence available on record, it cannot, therefore, be said that there are no reasonable grounds for believing that the petitioner is not guilty of the offences under the NDPS Act. The material, which the petitioner was going to supply to the other persons, is used for the manufacture of the brown sugar.
6. In the result, the bail application, filed by the accused-petitioner, is, therefore, dismissed.