The Supreme Court today (November 13) highlighted the need to consider “irreversible consequences” and the effects on an accused’s rights when a charge sheet is laid under the Narcotic Drugs and Psychotropic Substances Act 1985 without a Science Laboratory report Legal (FSL) within the time limit.

The Special Bank headed by Justice Suryakant comprising Justice Sudhanshu Dhulia and Justice Ujjal Bhuyan heard the issue of whether a person charged with offenses under the Narcotic Drugs and Psychotropic Substances Act 1985 is entitled to bail in the absence of a charge where the prosecution has not provided the Forensic Science Laboratory (FSL) report with the charge sheet within the prescribed time .

During the hearing, Justice Suryakant pointed out that the present reference should focus on balancing the rights of the accused in cases where the FSL report was not provided in time.

“What are the rights of the accused to be protected by us if the FSL report is not received in time….and such rights which, if not protected, will become irreversible?” remarked Justice Suryakant.

The court was informed that as per Rule 14 of the NDPS (seizure, storage, taking of evidence and disposal) Rules, 2022, the FSL report must be submitted to the Magistrate Court within 15 days of receipt of the sample. In addition, the rule states that if a “The quantitative analysis requires a longer time, the results of the qualitative test will be sent to the court with a copy of the investigating officer within the term mentioned on the original copy of the test memo, and in the next fifteen days the result of the quantitative analysis. the test will also be indicated on the duplicate Evidence Memo and sent to the Court with a copy to the Investigating Officer”..

In view of the above, the court held that the Rules do not provide for the consequences for failure to meet the set deadline.

“Rules are silent on consequences.”

Underscoring the larger impact the current matter has on NDPS trials at the national level, Justice Suryakant insisted on a balanced approach where the rights and interests of the accused and the state must be kept in mind.

“Finally, a balancing act — no harm should be done to the accused, but then no harm should be done to the prosecution, and because … and the nation has stakes in these proceedings, there are no stakes individual. The country has some very serious stakes involved.”

The Bench ponders the administrative lapses in setting up laboratories in all states

During the hearing, Justice Dhulia asked why there was delay in submitting the FSL reports despite sufficient time of 15 days given under the 2022 Rules.

“We are not scientists, we don’t know how it is prepared. Now, if 15 days are given in the time period, it means that such a report can be prepared – no problem with that, then why the delay?” Justice Dhulia asked.

The councilors then replied that the delays were due to administrative shortcomings. At this time, Justice Suryakant also flagged the issue of inadequate laboratories in the states and lack of sufficient expertise to prepare FSL reports. The court also noted that larger states like Uttar Pradesh would have only 1-2 such FSLs to test the samples amid large pending cases.

AOR Ashima Mandla before one of the petitioners pointed out that as per the 2013 directions of the Apex Court of Thana Singh v. Central Narcotics Bureaueach state is required to identify and set up laboratories for NDPS cases and set up monitoring committees to oversee that trials are not delayed due to absence of relevant documents.

Taking note of the same, Justice Suryakant also opined that it will be relevant to see whether proper compliance of the 2013 directions has been done or not by the states as it would have a holistic impact on the trials under the NDPS Act.

“Lack of adequate laboratories and manpower….we need to know how many states have partially, fully or not even met those directions and if they intend to do so and how many such cases are there? because the trial can’t start, maybe the charges can’t be brought – all these issues overlap”

The Commission emphasized the quality of training of these forensic experts involved in the preparation of the reports and the nature of such institutions that can provide such training.

“ We wonder too; How many such institutions are there that offer specialized training in this type of course as well? … Ideally, there are universities for this, but they have professors and professors for this and in the subject. These are issues that will affect the entire country, we are not just going by one state, we have to have a pan-India approach”.

In its order, the court directed counsel for both sides to prepare a list of questions that would address the need to balance the rights of the accused against possible procedural and prosecution interests.

“ Both parties are requested to formulate questions explaining the irreversible consequences and also the mandatory character of the procedural compliances so as to save both the interest of the accused and the prosecution.”

The tribunal also made it clear that it will not go into individual cases of the petitioners seeking bail in the present case. The court would confine itself to the question of law and the lawyers would be given liberty to withdraw their individual bail applications and seek an appropriate remedy before the special courts.

Bank also called Advocate Ashima Mandla the nodal officer in the main matter. Advocate Siddhant Sharma appeared as Standing Counsel for the State of Punjab and was appointed as Nodal Officer for the respondents.

The matter will now be heard on December 11.

What led to the presentation of the reference?

Originally a division bench comprising Justices Aniruddha Bose and PV Sanjay Kumar was hearing a special leave petition filed against a judgment of the Delhi High Court which dismissed the accused’s default bail plea on the ground of non-submission of the FSL report.

The Tribunal was considering whether failure to furnish the FSL report with the charge sheet within the stipulated time would entitle an accused to bail on the ground that a charge sheet would be incomplete without such a report.

The bank took note of the decision issued by a coordinate bank in Central Bureau Of Investigation Vs Kapil Wadhawan And Anr 2024 LiveLaw (SC) 58 which held that a charge-sheet will not be invalidated merely because the prosecution has not furnished certain documents with it.

The tribunal also noted that there are other pending petitions raising the same question. However, a final opinion is yet to be expressed, though interim orders have been passed in some cases granting interim bail to the accused.

Thus, the division bench referred the question to a larger bench in view of the diversity of views expressed by the various benches.

Case Details: JAGDISH SINGH v. STATE OF WEST BENGAL SLP no. 3850 of 2023 and other related matters