Tilak Raj Choudhary vs State Of J&K And Others

Sanjay Dhar, J

1) By virtue of the instant application, petitioner Tilak Raj Choudhary has sought default bail in case FIR No.135/2019 for offences under Section 8/21/22/29 of NDPS Act of Police Station, Gandhi Nagar, Jammu. It is pertinent to mention here that the learned trial court vide order dated 01.10.2019, while allowing the relief of default bail in favour of co-accused Manmohan Singh, declined to extend the similar relief to the petitioner herein on the ground that he had applied for regular bail and not for default bail.

2) The facts giving rise to the instant application are that on 24.05.2019, the petitioner and co-accused Manmohan Singh were intercepted by a police party near Digyana Ashram, Jammu, and upon their search, 145 injections of Rexogesic Bupromorphene were recovered from each of the accused. Accordingly, they were booked for commission of offences under Section 8/21/22/29 of NDPS Act and both of them were arrested on the same day. The charge sheet against the petitioner and co-accused was laid before the trial court on 22.07.2019. However, the same was not accompanied by the report of the FSL and the said report was filed before the trial court only on 23.09.2019.

3) The learned trial court while passing the order dated 01.10.2019 held that the charge sheet without report of FSL in a case pertaining to offences under NDPS Act is an incomplete charge sheet and, as such, accused Manmohan Singh, who had applied for default bail, is entitled to the relief prayed in the said application. In the case of petitioner Tilak Raj Choudhary, learned trial court observed that the said accused had applied for a regular bail and not for default bail, as such similar relief could not be extended in his favour.

4) I have heard learned counsel for the parties and perused the record.

5) From the perusal of the record, the following questions of law arise for determination:

(I) Whether a charge sheet submitted in terms of sub-section (2) of Section 173 of the Code of Criminal Procedure without the report of experts would amount to filing of an incomplete charge sheet or in other words no charge sheet in the eyes of law;

(II) Whether an accused can be enlarged on bail under Section 167(2) of the Code of Criminal Procedure even though he may not have made an application in writing claiming default bail but has orally argued during the course of arguments on his application for grant of regular bail that he is entitled to grant of default bail.

6) The answer to the afore noted two questions of law will determine the fate of petitioner's application and this may also have an impact on the validity and legality of the order dated 01.10.2019 passed by the learned trial court. Consequently, it may also have an impact on the rights of the co-accused, Manmohan Singh. Therefore, before proceeding further in the mater and hearing the parties on afore-noted two questions of law, it will be appropriate to afford an opportunity of hearing to the co-accused, Manmohan Singh. Accordingly, it is directed that a note be issued to co-accused, Manmohan Singh. The notice be sent to SHO, P/S Gandhi Nagar, Jammu, for effecting the service.

7) List again on 16th of November, 2020.