High Court of Punjab and HaryanaCRM-M/41613/2023disposed of

Vinit Yadav v. State Of Haryana

2024-02-29Mrs. Justice Manjari Nehru Kaul42 pages

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& "1. That in each and every case when an application for bail is made before the Courts below, under any of the provisions of the Code of Criminal Procedure, it shall be mandatory to mention in the application as to whether such or similar application for bail under any of the provisions of Code of Criminal Procedure has or has not been made before any Superior Court, and if at all, a Superior Court has been approached for similar relief, the result thereof.

2. An application, which does not contain the aforementioned information shall not be accepted/entertained and would be returned for resubmission with the necessary information.

3. It needs to be also clarified that the Public Prosecutors / prosecuting agency shall be duty bound to apprise the Court concerned(before whom the bail application has been moved), after collecting the necessary information from the investigating officers with respect to the filing of any application/petition before any Court, seeking concession of bail under the provisions of Code of Criminal Procedure and the result thereof.

4. In case of any lapse/default on the part of the investigating agency/prosecution in the said regard, it would be construed to be a fraud played upon the Court, which could invite departmental as well as penal action against the erring parties/officials, as the case may be." +6 868

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" & ".......However, it is undisputed that the period for presentation of challan has not been extended till date by the Court and both the applications i.e. the application under Section+167 (2) of Cr.P.C. as well as the application for extension of time for presentation of challan have got to be decided simultaneously......"

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> > &(!"%&&'()(*&+,+* & "Sir, the copied text is as under: To SHO, Pinjore Panchkula Subject: Regarding to lodge an FIR under various sections of IPC and NDPS Act against Dr. Vinit Yadav and others. It is submitted that on 03.05.2023 a team comprising of Mrs. Varsha Khangwal, ADC, Panchkula, Dr. Mukta Kumar (CMO, Panchkula), Dr. Sneh Singh (Dy. CMO, Panchkula), Dr. M.P Sharma (Psychiatrist), Mrs. Ankita (P.S.W, Panchkula) Parveen Kumar, (Drugs Control Officer, Panchkula) visited M/s Marranwala Psychiatry and Drug Dependence Treatment Hospital, Near Petrol Pump, Pinjore Baddi Road, Marranwala, Panchkula for surprise inspection. On spot Dr. Vinit Yadav, MD, (Psychiatry), owner of the hospital along with his staff were found present. After disclosing the identity and purpose of visit to him, the team asked him to produce the license and registration of the centre as De+

%#&% Addiction Centre. Dr. Vinit Yadav disclosed that he is registered from the Indian Medical Council vide certificate number.+16+21642 MCI/09+34934 dated 19.06.2009. He also disclosed that he is having his centre registered under Narcotic Drugs and Psychotropic Substances Act 1985 (61 of 1985) vide registration number/License No.+Hry.SJE+ 2019/17438 dated 12.09.2019 valid upto 11.09.2022 further not renewed another license under Establishment of Psychiatrist Hospital/Nursing Homes having number:+ SMHA/2019/1526 dated 20.06.2019 valid upto 19.06.2024. During inspection OPD/IPD registers, files of patient were examined by the team. Then the team interacted with many patients telephonically who had supposedly visited the centre and taken treatment on 03.05.2023, as informed by Dr. Vinit Yadav. These patients werel. Sh.

Pargat Singh Patient number+5795, (M.no+ 8968719673) 2. Sh. Bhag Singh Patient number+1825, (M.no+9872239062) 3. Sh. Paramjeet Singh Patient number+4034, (M.no+ 9418143347) 4. Sh. Rakesh Sharma, Patient number+5108 (M.no+7876342044) 5. Sh. Karam Singh Patient number+5117 (m.no+7590031792) 6. Sh. Shivam Sharma Patient number+5695, (m.no.

7. Sh. Gurdarshan Singh Patient number+3669, (m.no+ 9779721768) 8. Sh. Sikander Ali, Patient number+1689, (m.no+8219306096) 9. Sh. Prithvi, Patient number+1640 (m.no+7082386486) 10. Sh. Daljeet Patient number+ 2332, (m.no+7807212485). Out of these patients, Rakesh Sharma's mother picked the call and gave number of Sh. Rakesh Sharma. She denied having any knowledge of his taking any treatment from the Marranwala De+addiction Centre. The number of Rakesh Sharma was found switched off. All the remaining patients denied visiting the De+ Addiction centre on 03.05.2023 but their entries were found in the OPD files. Also these patients claimed that the doses consumed by them were much lower than that prescribed in the OPD files. During the inspection, interviews of patient named Sh. Prince Masih, Sh. Sachidanand and Sh. Malkit Singh was done.

During these interactions, it was noticed that there was gross mismatch between the doses of medicine (Buprenorphine) prescribed and that being dispensed. Five persons namely Sh. Ram Singh, Sh. Abdul, Sh. Prince Masih, Sanjeev Kumar and Sh. Mukesh disclosed that they used to come on 1" of every month and purchase three strips of medicines. As per the statement of the OPD patient present at the moment, Buprenorphine was being dispensed by Jasneet Narinder who were ward attendants. It was also reported by patients that during the treatment period the drugs were being dispensed directly from the dispensing counter, even without personal consultation with the doctor in+charge of the centre.

%#% present at the centre the staff nurses were not trained as per the guidelines. As informed by Dr. Vinit Yadav there has been no indoor admissions from January 2023 to till date. One patient Sh. Mulkhraj who was present at the centre reported that he has been dispensed Bupernorphine on 03.05.2023 however no record of the said patient was found in any register available at the centre. 33 original patient files were taken for verification of the record by the team, copies of these files have been taken by Dr Vinit Yadav. Handwritten statement has been taken on the spot of Dr. Vinit Yadav, Staff Nurse Anita, Amrita, Bhagwat Kalpana. The Centre is not having valid registration number under Haryana De+addiction Centres Rules 2010, Amended 2018 to run a De+Addiction centre. Moreover Dr.

Vinit Yadav and his staff is doing fake entries in the patient files as disclosed by the patients present in the centre and also disclosed by the patients telephonically. Committee suspects that narcotic drug Buprenorphine is being misused and or diverted to some other places for misuse by the centre by making fake entries in the patient files and registers and this needs to be thoroughly investigated You are hereby requested to lodge an FIR against Dr. Vinit Yadav others who are involved in this malpractices/violations under various sections of IPC and others laws in force to ensure non+tampering and protection of the records, the centre may be sealed as per law. Enclosed:+1. Original Spot memo.3 pages 2. 33 original patient files (List enclosed). Enclosine 1 22 3. Original hand written statement of Dr. Vinit Yadav, Ms. Anita, Ms.

Amrita, Ms. Kalpana, Ms. Bhagwati, Ms. Poonam, Mr. Jasneet Mr. Narinder. Encloser 3, 4, 9, 10, 11, 12, 13, 14, 15 4. Hand written statement of Patient Sanjeev Kumar. ENR 16,17 5. Copies of Registration certificates. ENR No 5,6,7,8 Dated:+ 03.05.2023 SD SNEH SINGH 3/5/23 Dr. Sneh Singh Dy. Cмо, Panchkula Police proceedings: Dated 03.05.2023 at around 5:30 p.m. I PSI received telephonic information through Station House Officer, Police Station that a team led by Mrs. Varsha Khagwal ADC Panchkula which by Dr. Mukta Kumar CMO Panchkula, Dr. Sneh Singh dy.cmo Panchkula, Dr. M.P. Sharma (psychiatrist), Mrs. Akita (pow) Panchkula and Praveen Kumar (Drug Control Panchkula) have reached for inspection Madhavala Psychiatric Hospital.

On the basis of this information, I PSI along with ESI Ajit Singh 78 Panchkula, HGH Kuldeep 923 HGH Rajendra 913 HGH Rulda Ram 866 Panchkula reached at the spot where Dr. Sneh Singh dy CMO Panchkula presented before me a written complaint after their inspection at around 10:30 PM. From the contents of the said written complaint it is found that License No. hry.sye+ 2019/17438 dt 12.09.

%#,% 11.09.2022] issued to Dr. Vinit Gupta's center under NDPS Act has since expired and as per the Notification No. S.O. 527 (c) dt 16.07.1996 specifying small quantity and commercial quantity issued by the Ministry of Finance, Department of Revenue, the Buprenorphine falls at Serial No. 169 and therefore, falls in the category of psychotropic substances under the NDPS Act. From the contents of the complaint and the notification issued by the Ministry of Finance, Department of Revenue, Notification No. S.O. 527 (c) dt 16.07.1996 specifying small quantity and commercial quantity at Serial No. 169 as well as the original report produced by Dr. Sneh Singh, 33 original patients file and original hand written statements of Dr.

Vineet Yadav, Anita, Amrita, Kalpana, Bhagwati, Poonam Jashmeet, Narindra and handwritten patient Sanjeev Kumar, copy of registration certificate would reveal the commission of offence under Sections 22, 32+61+85 NDPS Act and 420, 465, 468 IPC. Accordingly, after reducing the same into writing, the same is being sent to the Police Station in Panchkula through HGH Kuldeep 923. After registration of the case, the number of the same be intimated. Special reports be prepared and be sent to the higher officials. The nodal officer under the NDPS Act has been informed to reach at the spot. I PSI am awaiting the arrival of Nodal Officer along with the team of the doctors."

"% (- ,.

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Mr. Sangram Singh Saron, Advocate.

Mr. Chetan Sharma, DAG, Haryana.

**** XXX XXX XXX After arguing for some time, when this Court was not inclined to grant bail to the petitioner in view of the fact that the investigation was still pending, a prayer was made by learned counsel for the petitioner for withdrawal of the instant petition.

%# Dismissed as withdrawn."

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$ !" " & "Present : Mr. Vikram Chaudhri, Sr. Advocate with Mr. Parvez Chaudhary, Advocate and Mr. Digvijay Singh, Advocate for the petitioner.

**** XXX XXX XXX This is the second petition filed under Section 439 Cr.PC for release of the petitioner on bail in case FIR No.234 dated 04.05.2023 registered under Sections 420, 465, 468 IPC and Sections 22 and 32 NDPS Act at Police Station Pinjore, District Panchkula.

Learned Senior counsel for the petitioner has miserably failed to bring to the notice of this Court any material change in circumstances, which would warrant entertaining the instant petition. The previous petition was withdrawn as recently as .on 01.06.2023 by the learned counsel for the petitioner wherein the following order was passed:

"After arguing for sometime, when this Court was not inclined to grant bail to the petitioner in view of the fact that the investigation was still pending, a prayer was made by the learned counsel for the petitioner for withdrawal of the instant petition.

Dismissed as withdrawn."

Hence, in the aforementioned facts and circumstances, more so, as also conceded by the learned Senior counsel for the petitioner that investigation in the FIR in question, is still underway, no ground is made out to entertain the present petition. Accordingly, the present petition stands dismissed."

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& " & 3rd Petition under Section 439 read with Section 482 Cr.P.C. humbly praying that this Hon'ble Court may be pleased to direct the release of the petitioner on bail and/or interim bail in case arising out of FIR No. 234 dated 4.5.2023 registered under Sections 420, 465, 468 IPC and Sections 22 and 32 NDPS Act at Police Station Pinjore, District Panchkula keeping in view the fact that the petitioner is lying incarcerated for the last over 90 days without the filing of the challan apparently in the absence of any FSL report as well as while taking into consideration the ratio decidendi laid down by a Division Bench judgement of this Hon'ble Court in Inderjeet Singh @ Laddi vs. State of Punjab 2014 SCC Online P&H 24990.

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3. That the instant petition is &

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to the following issues: + I. Whether in the absence of any Final report having being filed and apparently there being no FSL report, could the petitioner be kept behind the bars for a period exceeding 60 days and accordingly, would the petitioner be entitled to be released on default bail in consonance with Section 36A of the NDPS Act read with 167(2) Cr.P.C.? II. Whether in view of the law laid down by a Division Bench of this Hon'ble Court in Inderjeet Singh @ Laddi vs. State of Punjab 2014 SCC Online P&H 24990, the petitioner deserves the concession of interim bail awaiting the FSL Report?

%#%

4. That with respect to the first issue, the following submissions may be noted:+ A. FOR THAT, the petitioner was arrested way back on 4.5.2023 in a case purportedly for offences under Sections 420, 465, 468 IPC as well as Sections 22 and 32 of the NDPS Act, 1985, however, despite a lapse of more than 60 days as on 5.7.2023, no FSL/Chemical Analysis Report has been filed and therefore, the petitioner ought to have been offered default bail in terms of 167(2) Cr.P.C. on the expiry of the statutory period.

B. FOR THAT, moreover, no offence under the NDPS Act is made out against the petitioner. Since the FSL report has not been obtained within the outer limit prescribed under Section 36A(4) of the NDPS Act and hence even if the chargesheet had been filed in the absence of such a report, the same would have been incomplete and hence the petitioner was fully entitled to be enlarged on statutory bail.

C. FOR THAT, the indefeasible right accruing to the petitioner for default/compulsory bail in terms of Section 36A (4) of the NDPS Act r/w 167(2) of Cr.P.C. is an integral part to the fundamental right of personal liberty under Article 21 of the Constitution of India and cannot be brushed away by the mere filing of an incomplete chargesheet in terms of Section 173 of Cr.P.C. for offences under NDPS Act.

D. FOR THAT, the FSL/Examiner report is an indispensable part of the investigation process in offences under the NDPS Act.

E. FOR THAT, under the stringent law provisions of the NDPS Act, the FSL/Examiner report is a crucial and essential element for the Prosecution to inculpate the accused to prove that the article seized/recovered from him is indeed a substance/contraband/psychotropic drug which comes under the realm or offences under the NDPS Act and ispo facto without same it would not be possible to determine that the article seized Firstly, comes under the domain of NDPS offences and Secondly, to determine under which category of quantity it will fall. The Hon'ble High Court of Bombay in Sagar Parshuram vs State of Maharashtra, Bail Application (ST) No 4761/2020, observed that "It may not be overlooked that the chemical Analyzer's report is an essential integral and inherent part of the investigation under the NDPS Act and lay the foundation of accused's culpability without which magistrate is not able to form an opinion and take cognizance of the accused involved in the commission of

%# % offence under the Act". Furthermore, a plethora of judgments have been rendered on the same point of law. (Jagvinder Singh vs State of Haryana, CRM no. 361 of 2021; Ajit Singh @ Jeeta & Anr. Vs State of Punjab, CRR No 4659 of 2015; Rohtash @ Raju vs State of Haryana CRR+933 of 2022).

F. FOR THAT, Standing Instructions 1/88 and 1/89 were issued by the Narcotics Control Bureau (NCB) and the Department of Revenue Intelligence respectively. A said per the aforesaid Standing Instructions issued by the Narcotics Control Bureau (NCB), which have been held to be a 'requirement of law' as per the dictum of the Hon'ble Supreme Court in Union of India v Balmukund Rai, (2008) 12 SCC 161 (Coram 3JJ). The manner of drawing a sample of narcotics has been laid down in Standing Order 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau.

G. FOR THAT, the Hon'ble High Court of Rajasthan in Ramchandra v. State of Rajasthan, S.B. Criminal Misc. Second Bail Application No.3122/2021 held that the sample drawn on the spot in terms of Section 55 of the NDPS Act which is sent for FSL as per the abovementioned standing instructions and representative samples drawn before the Magistrate in terms of 52A of NDPS Act for the purpose of primary evidence in the trial are distinct and the said question of law was not considered by the Hon'ble Supreme Court in Union of India v. Mohanlal, (2016) 3 SCC 379. Withal to above, various Hon'ble High Courts have granted bail for the non+compliance of the abovementioned standing instructions, (High Court of Rajasthan in Om Prakash Bishnoi v. Union of India, S.B. Crl. Misc. No. 7553/2019 Netram v. State of Rajasthan 2014(1) Crl.R.(Raj) 163). H. 9: 0;+0< & 3 %3 $ ! !

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& "Present: Mr. Kunal Sharma, Advocate for the petitioner. Ms. Trishanjali Sharma, Dy. Advocate General, Haryana for the respondent/State.

**** Learned counsel for the petitioner has informed the Court that the petitioner has been extended the concession of default bail by the learned trial Court vide order dated 10.11.2023, during the pendency of the instant petition. Registrar (Vigilance) is directed to call for the complete record of the instant case along with the report from the trial Court concerned, forthwith.

Adjourned to 15.11.2023.

To be taken up at 10:00 a.m."

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$$ ! ! & "Present: Mr. Raktim Gogoi, Mr. Keshavam Chaudhri and Mr. Kunal Sharma, Advocates for the petitioner. Ms. Trishanjali Sharma, Dy. Advocate General, Haryana for the respondent/State.

XXX XXX XXX In compliance of the order dated 14.11.2023, Registrar (Vigilance) has produced the report of the trial Court along with the complete record of the case. The record has been perused by this Court.

At this stage, learned counsel appearing for the petitioner submits that the instant petition has been rendered infructuous since the petitioner has been extended the concession of default bail under Section 167(2) Cr.P.C. A prayer has, therefore, been made for dismissal of the instant petition as having been rendered infructuous.

Insofar as prayer for grant of bail in terms of averments made in the instant petition is concerned, the same has been rendered infructuous for the present, as the petitioner has been granted the concession of default bail by the Court below vide order dated 10.11.2023. A perusal of the record received from the trial Court in compliance of order dated 14.11.2023, as also the report of the trial Court, reveals inter alia the following: (i) The application for default bail under Section 167(2) Cr.P.C. filed before the trial Court on 31.10.2023 does not refer to, or contain any averments whatsoever regarding the pendency of bail petitions before this Court or before Hon'ble the Supreme Court of India. However, in the affidavit of Inderjit Yadav filed before the trial Court

%% dated 31.10.2023 as Parokar (father of the petitioner - Vinay Yadav) the following averments have been made: "That no such or similar application is pending before the Court of Session or any other Court at the time of filing of the application. Neither such application has been filed earlier in this Hon'ble Court or in the Hon'ble Supreme Court of India."

Notably, the affidavit is conspicuously silent about the status of petitions filed under Section 439 Cr.P.C. before this Court including the present one, which is in contravention of the directions issued by this Court vide order dated 22.07.2021 passed in 'Vijay Kumar @ Vijay vs. State of Punjab' CRM+M No.21526 of 2021.

This Court in Vijay Kumar's case (supra) had issued the following directions to the courts in the States of Punjab, Haryana and UT, in view of the fact that it had been coming to notice that during the pendency of petitions under Section 439 Cr.P.C. before this Court, some unscrupulous accused had been clandestinely approaching the trial Court seeking similar relief by concealing the factum of the pendency of petitions under Section 439 Cr.P.C. and/or by misrepresenting facts:

"1. That in each and every case when an application for bail is made before the Courts below, under any of the provisions of the Code of Criminal Procedure, it shall be mandatory to mention in the application as to whether such or similar application for bail under any of the provisions of Code of Criminal Procedure has or has not been made before any Superior Court, and if at all, a Superior Court has been approached for similar relief, the result thereof.

2. An application, which does not contain the aforementioned information shall not be accepted/entertained and would be returned for resubmission with the necessary information.

3. It needs to be also clarified that the Public Prosecutors/ prosecuting agency shall be duty bound to apprise the Court concerned(before whom the bail application has been moved), after collecting the necessary information from the investigating officers with respect to the filing of any application/petition before any Court, seeking concession of bail under the provisions of Code of Criminal Procedure and the result thereof.

4. In case of any lapse/default on the part of the investigating agency/prosecution in the said regard, it would be construed to be a fraud played upon the Court,

%&% which could invite departmental as well as penal action against the erring parties/officials, as the case may be." (ii) This omission assumes significance, especially considering the report of the trial Court, which explicitly notes that neither in the application filed for extension of time nor in the reply to the said application the factum of the pendency of the present petition was disclosed. In this regard, it would be apposite to refer to the reply dated 03.11.2023 filed by the prosecution (which is part of the trial Court record received by this Court) wherein, a reference has been made not only to the earlier two petitions filed by the petitioner before this Court but also to the present petition, albeit wherein incorrectly it has been stated that the third petition filed by the petitioner had been dismissed.

(iii) It is also relevant to note that in order dated 10.11.2023, vide which the petitioner was granted the concession of default bail, the trial Court has made a reference that "other reports related to the case were obtained from the quarters concerned", however, no such reports are forthcoming from the available records, and the order itself lacks specific details or references to these purported additional reports.

Let notice be issued to the petitioner - Vinit Yadav, as to why bail granted to him vide order dated 10.11.2023, be not cancelled. Let an affidavit be also filed by the Commissioner of Police, Panchkula explaining the stand of the State.

Adjourned to 01.12.2023."

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$$ ! ! & "Present: Mr. Vikram Chaudhri, Senior Advocate with Mr. Raktim Gogoi & Mr. Kunal Sharma, Advocates for the petitioner.

Mr. Rahul Mohan, Sr. Dy. Advocate General, Haryana and Mr. Chetan Sharma, Dy. Advocate General, Haryana with SI Mann Singh, for the respondent/State.

*****

%% Learned senior counsel appearing on behalf of the petitioner has filed short affidavit of the petitioner, which is taken on record subject to all just exceptions. Learned senior counsel for the petitioner inter alia contends that the reason why the petitioner applied for default bail before the learned trial Court was because the investigation in the present case was still incomplete, and thus, a right of default bail had accrued in his favour. It was only in exercise of this right that the petitioner had filed an application under Section 167(2) Cr.P.C. before the trial Court on expiry of 180 days on 31.10.2023. It has been further submitted that the application under Section 167(2) Cr.P.C. was moved before the leaned trial Court at Panchkula at 11:00 a.m., whereinafter the Court directed the same to be filed with the Registry.

It has been submitted that thereafter, the petitioner moved his application under Section 167(2) Cr.P.C. with the Registry of the trial Court at 2:00 p.m., which was then subsequently taken up by the Court concerned. Learned senior counsel has submitted that there was no intentional concealment on behalf of the petitioner qua the pendency of the instant petition before this Court and the reason why there had been non compliance of the directions issued by this Court in 'Vijay Kumar @ Vijay vs. State of Punjab' CRM+M No.21526 of 2021, was because the Lawyers are unaware of the directions issued therein as the same were neither reported in any Law Journal nor any strict compliance of the directions passed in Vijay Kumar's case (supra) were being made in the subordinate Courts of Punjab, Haryana and UT Chandigarh.

Learned State counsel has filed reply by way of an affidavit of Sibash Kabiraj IPS, Commissioner of Police, Panchkula, which is taken on record subject to all just exceptions and a copy thereof supplied to learned senior counsel opposite.

While disputing the submissions made by the learned senior counsel for the petitioner, learned State counsel has submitted that it is a matter of record that the investigation in the case was still incomplete as FSL report was still awaited. It was in this background, the Public Prosecutor had moved an application under Section 36A(4) of the NDPS Act on 31.10.2023, i.e. before the expiry of 180 days, seeking extension of time to file the challan. He has submitted that it was a matter of record that the application as mandated under Section 36A(4) of the NDPS Act had been moved by the Public Prosecutor seeking extension of time, prior to the application filed under Section 167(2) Cr.P.C. by the petitioner. It has been

%,% further submitted that even otherwise, the petitioner had been erroneously allowed to be released even before the order granting him default bail under Section 167(2) Cr.P.C. had been signed and uploaded on the website by the Court below.

Learned State counsel is directed to file a detailed reply on behalf of the Commissioner of Police, Panchkula/ Superintendent, Central Jail, Ambala, especially qua the procedure followed with respect to the verification of judicial orders passed by the Courts and also with regard to the procedure followed for the release of accused on bail.

The reply be positively filed before the next date of hearing with a copy in advance to the counsel opposite. Adjourned to 12.12.2023."

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& "Present: Mr. Vikram Chaudhri, Senior Advocate with Mr. Raktim Gogoi, Mr. Kunal Sharma & Mr. S. Vinod, Advocates for the petitioner.

% Mr. Chetan Sharma, Dy. Advocate General, Haryana for the respondent/State.

***** Learned State counsel, on instructions, has informed the Court that though an application under Section 439(2) Cr.P.C. had been moved by the State, however, due to certain objections raised by the Registry of this Court, it could not be listed; the said objections have since been removed and there is every likelihood that the petition seeking cancellation of bail of the petitioner would be listed within this week.

On a pointed query put to the learned State counsel as to whether the FSL report had been received, he, on instructions, has informed the Court that the FSL report had since been received on 06.12.2023. On a further query put to the learned State counsel as to on what date the FSL report was prepared, he on instructions has submitted that it was prepared on 03.11.2023.

In the circumstances, the Director FSL is directed to file a detailed affidavit as to what transpired between 03.11.2023 and 06.12.2023, i.e. the date when the FSL report was received by the investigating agency, and as to why it took more than a month for the FSL report to be dispatched to the investigating agency; more so when it is not disputed that repeated reminders had been sent by the investigating agency to the FSL prior to 03.11.2023 to send the FSL report at the earliest and due to the non+ receipt of the FSL report, the prosecution through the Public Prosecutor had moved the trial Court under Section 36(A)(4) of the NDPS Act on 30.10.2023 seeking extension of time to file challan.

The affidavit shall also detail the procedure followed by the Forensic Science Laboratory after the preparation of FSL report; by what mode is the intimation sent to the investigating agency qua the FSL report having been prepared. Since in the case in hand, the FSL report was prepared on 03.11.2023 and received after more than a month by the investigating agency, the affidavit shall detail the steps taken by the Laboratory to intimate the investigating agency about the report being ready. The said affidavit shall also contain the details of all the FSL reports, which were prepared between 01.11.2023 and 07.12.2023 pertaining to cases under the NDPS Act; the dates when the FSL reports in those cases were prepared and when the intimation qua the same was sent to the investigating agencies concerned.

%+% The affidavit shall also give reasons as to why in the case in hand, there was an inordinate delay in the dispatch of the FSL report to the investigating agency, since repeated reminders had been sent to the Laboratory prior to 03.11.2023.

The affidavit shall be positively filed on the next date of hearing. It is made clear that in case the affidavit is not filed, adverse inference shall be taken and the Director FSL shall come present in the Court with all the relevant information including the records pertaining to the FSL reports, of all cases registered under the NDPS Act, between 01.11.2023 and 07.12.2023.

Adjourned to 22.01.2024."

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$ ;$% & "APPLICATION UNDER SECTION 167(2) CR.P.C. FOR GRANT OF DEFAULT BAIL TO THE APPLICANT/ACCUSED DR. VINIT YADAV.

1. XXX XXX XXX

2. That the applicant was arrested on 4.5.2023 and was remanded to Police Custody on 5.5.2023 thereafter, to judicial custody.

3. That the applicant has spent more than 180 days in custody but no Charge+Sheet has been filed against him as per his knowledge. Also, no application seeking extension of time to file a Supplementary Challan has been filed in this Hon'ble Court as per his knowledge.

XXX XXX XXX XXX XXX XXX SHORT AFFIDAVIT OF INDERJEET YADAV AGED 64 YEARS SON OF RAMPAT YADAV RESIDENT OF HOUSE NO.1251/1, DAYANAND COLONY, GURGAON I, the above named deponent, do hereby solemnly affirm and declare as under:+

1. That the above named deponent is the Parokar (father of the applicant) is filing the present application in this Hon'ble Court on behalf of the applicant. The present application is likely to succeed on the grounds taken in the same. The contents of the application may kindly be read as a part of the present affidavit.

2. That the accompanying application has been drafted by the counsel for the deponent on her instructions.

3. That the petition has been drafted by the counsel for the deponent on his instructions and the contents of the same have been over and explained to the deponent. 6 0%

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& ()* $$ !& "10. From the above, the law, which emerges is that mere filing of the chargesheet subsequent to a person is released on default bail under Section 167(2) Cr.P.C. cannot be a ground to cancel the bail of a person, who is released on default bail. However, on filing of the chargesheet on conclusion of the investigation, if a strong case is made out and on merits, it is found that he has committed a non+ bailable offence/crime, on the special reasons/grounds and considering Section 437(5) and Section 439(2) Cr.P.C, over and above other grounds on which the bail to a person, who is released on bail can be cancelled on merits.

11. Therefore, there is no absolute bar as observed and held by the High Court in the impugned judgment and order that once a person is released on default bail under Section 167(2) Cr.P.C., his bail cannot be cancelled on merits and his bail can be cancelled on other general grounds like tampering with the evidence/witnesses; not cooperating with the investigating agency and/or not cooperating with the concerned Trial Court etc.

12. As such, we are in complete agreement with the view taken by this Court in the aforesaid decisions. The submission on behalf of the respondent - original Accused No. 1 and the view taken by the High Court in the impugned judgment and order that once an accused is released on default bail under Section 167(2) Cr.P.C., his bail cannot be cancelled on merits is accepted, in that case, it will be giving a premium to the lethargic and/or negligence, may be in a given case of deliberate attempt on the part of the investigating agency not to file the chargesheet within the prescribed time period. In a given case, even if the accused has committed a very serious offence, may be under the NDPS or even committed murder(s), still however, he manages through a convenient investigating officer and he manages not to file the chargesheet within the prescribed time limit mentioned under Section 167(2) Cr.P.C. and got released on default bail, it may lead to giving a premium to illegality and/or

%&% dishonesty. As observed hereinabove, such release of the accused on default bail is not on merits at all, and is on the eventuality occurring in proviso to sub+section (2) of Section 167. However, subsequently on curing the defects and filing the chargesheet, though a strong case is made out that an accused has committed the very serious offence and non+bailable crime, the Court cannot cancel the bail and commit the person into custody and not to consider the gravity of the offence committed by the accused, the Courts will be loathe for such an interpretation, as that would frustrate the justice. The Courts have the power to cancel the bail and to examine the merits of the case in a case where the accused is released on default bail and released not on merits earlier. Such an interpretation would be in furtherance to the administration of justice."

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/ 1 ? " "& "2. That the deponent submits and states that on receipt of the orders of this Hon'ble Court, the detailed report in this matter was sought from the concern reporting officer who is also Assistant Director+cum+Incharge of NDPS division. Copy of which is attached as Annexure R+1.

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Procedure followed by the Laboratory/Information to Field Unit: It is submitted that the standard process being followed for intimating field units/concerned Police Authority for collection of report is that concerned police units are intimated through WAN message by the concerned Laboratory Assistant about test report being ready for collection at the end of each month. However, in priority cases, the Field Units are informed immediate on test report being ready in such cases.

It is further submitted that after the preparation of test report the case file and the parcel(s) containing remains of the sample is handed over to the laboratory assistant. The laboratory assistant is re+stitch and reseal the parcel(s) with wax seal, having inscription of officer's identity who has examined the samples. Then entries are made in all the registers to maintain further record i.e. priority case register, Master case register, district wise case record register etc. Further to dispatch the report, report envelops is prepared also sealed with wax seals. After compilation and maintenance of record, case gets ready for collection. In the above mentioned procedure requires at least 10 days. Laboratory makes all effort to dispatch the intimation message to concerned unit within 10 to 15 days. /

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3. Report Collection by the Investigation agency: That the deponent submits and states that the investigating agency collected the report on 05.12.2023.As per record the intimation for collection of the case report was not sent to the Field unit by the concerned Laboratory Assistant and the FSL report was collected in routine by the field unit on 05.12.2023.

4. Reasons for Delay: That the deponent submits and states that the delay, in examining case exhibits and dispatch thereof, occurred due to following reasons: (a) That in the Forensic Science Laboratory Madhuban, Karnal, the exhibits are barcoded by the investigative officers and deposited in Forensic Science Laboratory, Haryana through a software called "Trakea" designed to receive the crime exhibits in confidentiality and instantly the case is randomly allotted among the reporting officers of the concerned division automatically in the software. The present case was received in NDPS division of Forensic Science Laboratory, Madhuban on 10.05.2023. At that time the NDPS division had two reporting officers handling approximately 3700 NDPS cases.

It is also pertinent to mention here that NDPS division is facing acute shortage of supporting scientific staff persons. Out of total 15 scientific sanctioned posts only 4 scientific persons are working, appointed through outsource policy. However, FSL Haryana is making all efforts to recruit the scientific person/staff. The recruitment of 53 posts of scientific persons is under process through Haryana Staff Selection Commission.

(b). As per Standards on Work Norms for Evidence Material Analysis issued by Directorate of Forensic Sciences Services, New Delhi on 15.01.2020, an officer is expected to examine and report 120+150 cases (10 normalized exhibits per case) per year. As per the BPR&B norms an officer is expected to examine and report 400 cases per year i.e. 33 cases per month. Against above mentioned norms, reporting officers are disposing off 1200 cases per year.

(c). The case exhibit in the present case was received on 10.05.2023 and was automatically allocated to the reporting officer Mrs. Karishma, Assistant Director (NDPS) and in pursuance of the first come first served policy, the exhibits was due to be examined after 18 months i.e. in the year 2025 as per current pendency and working capacity of the division.

(d). However, the examination is prioritized and taken for

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5. Guidelines for Prioritization and Future Measures: That the deponent submits and states that the examination is prioritized and taken for examination out of turn on Hon'ble court's orders or priority letter of gazetted police authority. /

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