..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2015 OF 2008 Rafael Palafox Garcia. ..Applicant. Versus Versus Versus The Union of India, and Anr. ..Respondents. .... Mr.Anil Anney, Sr.Counsel a/w. Pravin Singhal, Adv. i/b. Rajeev Sawant & Associates for the applicant. Smt.Revati M. Dere, Counsel a/w. Mandar Goswami, Counsel for respondent No.1-U.O.I. Mr.S.S.Pednekar, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATE OF RESERVING THE ORDER : 25th August,2008. DATE OF PRONOUNCEMENT OF ORDER : 25th September,2008. ORAL ORDER ORAL ORDER ORAL ORDER : 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, ..(2).. 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 ..(3).. 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 ..(4).. 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 ..(5).. 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 Sunil Vasantrao Sunil Vasantrao Phulbande and another v. State of Maharashtra Phulbande and another v. State of Maharashtra Phulbande and another v. State of Maharashtra reported in 2005 Drugs Cases (Narcotics) 32 2005 Drugs Cases (Narcotics) 32 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 ..(6).. 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 Analyser’s 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 others v. State Sharadchandra Vinayak Dongre and others v. State Sharadchandra Vinayak Dongre and others v. State of Maharashtra of Maharashtra of Maharashtra reported in 1991 Mh.L.J.656 1991 Mh.L.J.656 1991 Mh.L.J.656. In ..(7).. 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 Joaquim M. Correia v. State of Goa passed in Joaquim M. Correia v. State of Goa passed in Joaquim M. Correia v. State of Goa passed in Criminal Misc.Application No.88 of 1998. Criminal Misc.Application No.88 of 1998. 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 ..(8).. 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, dated 22nd December, dated 22nd December, 2006 in the case of Ms.Malin Lundberg Isabelle v. 2006 in the case of Ms.Malin Lundberg Isabelle v. 2006 in the case of Ms.Malin Lundberg Isabelle v. Union of India & Anr. in Criminal Application Union of India & Anr. in Criminal Application Union of India & Anr. in Criminal Application No.4178 of 2006 No.4178 of 2006 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. ..(9).. 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 Phulbande’s case (supra) which is a case similar to the present case, there is no reference at all ..(10).. 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 vs. State of Maharashtra Jagdish Budhroji Purohit vs. State of Maharashtra Jagdish Budhroji Purohit vs. State of Maharashtra reported in AIR 1998 SUPREME COURT 3328 AIR 1998 SUPREME COURT 3328 AIR 1998 SUPREME COURT 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 ..(11).. 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 appellant’s factory. Thus the appellant’s 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 ..(12).. 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 ..(13).. 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 ..(14).. decision of the Supreme Court in the case of Dinesh Dalmia Vs. CBI Dinesh Dalmia Vs. CBI Dinesh Dalmia Vs. CBI reported in (2008) 1 (2008) 1 (2008) 1 Supreme Court Cases (Cri) 36 Supreme Court Cases (Cri) 36 Supreme Court Cases (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) ..(15).. 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 Dinesh Dalmia 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 ..(16).. 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 ..(17).. 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 Central Bureau of Central Bureau of Investigation v. R.S.Pai and another Investigation v. R.S.Pai and another Investigation v. R.S.Pai and another reported in AIR 2002 SUPREME COURT 1644 AIR 2002 SUPREME COURT 1644 AIR 2002 SUPREME COURT 1644, 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 ..(18).. 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. ..(19).. 22. A Full Bench of the Punjab and Haryana Court in the case of State of Haryana v. Mehal State of Haryana v. Mehal State of Haryana v. Mehal Singh and another Singh and another Singh and another reported in 1978 CRI.L.J.1810 1978 CRI.L.J.1810 1978 CRI.L.J.1810 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-sec. (2) of S.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 S.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 ..(20).. 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 S.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 ..(21).. of the requisite kind if the statements of the witnesses although had been recorded under S.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-sec. (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-sec. (2) of S. 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 ..(22).. relies on his testimony." 23. From the decisions