Md. Sabir Mondal vs State Of West Bengal & Anr

Dr. Ajoy Kumar Mukherjee, J.

Petitioner Md. Sabir Mondal was arrested on 18.03.2024 in connection with Gariahat P.S. Case no. 261 of 2024, with the allegation that 194 bottles of Codeine Phosphate and Triprolidine Hydrochloride syrup of 100ml each was allegedly found in the possession of the petitioner. The investigation has already been ended in a charge sheet which was submitted on 07.09.2024 without the Chemical Examination report. Subsequently charges have been framed on 04.03.2025 but till now prosecution could not examine a single witness.

Mr. Mondal in support of petitioner’s bail prayer submits that co accused of the instant case has been granted bail by this Court on 16. 12.2024 in CRN NDPS 1736 of 2024, on the ground that charge sheet which was filed without the Forensic report within 180days from his arrest was an incomplete charge sheet and as such as a matter of parity, petitioner is also entitled for bail on the same ground. Further contention of the petitioner is that in the case of Md. Arbaz and others Vs. NCT Delhi, the Supreme Court has taken a view that the same is not ground for the default bail and as such the same was referred to a three Judges Bench for consideration by granting interim bail to the petitioners therein and thereafter many other applications on the same ground have been tagged with the Md. Arbaz and others (supra) case and all were granted interim bail.

He further submits that this High Court by an order dated 08.10.2024 in CRM (NDPS) 1359 of 2024 Idul Mia Vs. State of West Bengal reported in 2024 SCC Online Cal 9109 granted default bail on the ground of non-filing the charge sheet with the FSL report within 180 days of arrest. It is further submitted on behalf of the petitioner that thereafter in the case of Ananta Barman Vs. State of West Bengal in CRM (NDPS) 1617 of 2024, by an order dated 02.05.2025 this Court has taken a view that non filing of Forensic Science Laboratory (FSL) report with charge sheet within 180 days is not a ground for grant of default bail.

Accordingly Mr. Mondal submits that two different co-ordinate Benches of this court passed divergent decision on the same issue and as such the matter may be referred to a larger Bench for consideration of the instant issue and in the meantime the petitioner may be released on interim bail.

Mr. Nandi Learned counsel appearing on behalf of the State opposed the bail prayer and submits that in the case of Ananta Barman (supra) this court has decided that the law laid down in Idul Mia’s case (supra) is not a good law and recently Guwahati High Court in Jitul Ali Vs. Union of Indian represented by NCB reported in 2024 SCC Online Gau 1916 had also taken the view that since the decision of the Supreme Court of India in the case of CBI Vs. Kapil Wadhawan reported in 2024 INSC 57 is binding upon the court, the decision of Idul Mia (supra) cannot be accepted to have a persuasive effect in connection with that case. He further submits that the co accused of this case was released on bail relying upon the decision of Idul Mia (supra) and as such it cannot be said that present petitioner is almost on the same footing and for which he is entitled to be realised on bail.

Mr. Nandi further contended that the restrictions imposed in section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985(in short Act of 1985) clearly attracts in respect of the present petitioner, in view of the facts and circumstances of the case and the trial is going to start shortly.

Therefore, the issue raised before this court is:

(i) whether the petitioner is also entitled to be released on bail/interim bail on the facts and circumstances of the case and also on the ground that co accused of this case obtained bail relying upon the decision of Idul Mia (supra), and that he is also on the same footing.

(ii) whether the instant matter is required to be referred before a larger Bench.

The self same issue have been elaborately discussed by the Division Bench of this Court in the judgment of Ananta Barman (supra) decided on 2. 05.2025.

The upshort of the discussion made in the said judgment is required to be reproduced below:-

This High Court earlier had dealt with the same issue i.e. whether the applicant is entitle to default bail under NDPS 1985, if the prosecution fails to file chemical examination report with the charge sheet within statutory period of 180 days in the Ebrahim Hossain’s Case reported in 2022 SCC Online Cal, 331, Debasish Tarafdar’s case reported in 2022 SCC Online Cal 534 and Raju Mondal Vs. State, 2022 SCC Online Cal 623 and the observation of the division bench made in the said cases are as follows:-

Ebrahim Hossain Case (Supra):-

Charge sheet submitted without chemical examination report could be construed as a report under section 173(2) of the Cr.P.C. and therefore the accused is not entitled to default bail.

Debasish Tarafdar Case (supra):-

In this case court relying upon various authorities of Supreme court as also of the Co-ordinate Bench of this Court held that the infraction, if there be any of section 52(A) (4) of the Act of 1985, that has to be evaluated at the time of trial and not otherwise. It has also noted that the procedure prescribed under section 52(A) of the Act of 1985 is a post seizure exercise and that failure to comply with such procedure does not affect the legality of the seizure.

Raju Mondal Case (supra):-

In this case court considered section 36 (A) of the Act of 1985 including section 36(A) (4) thereof and held that filing of charge sheet or report under section 173 of the Cr.P.C. and the taking of cognizance of an offence under section 190 thereof are two different distinct and separate acts. While, a chargesheet or report under section 173 of the Cr.P.C. is filed by the investigating agency, the cognizance of the offence has to be taken by the court under section 190 thereof. It has negated the contention of the accused that he was entitled to default bail in view of chemical examination report not being filed along with the charge sheet.

A Co-ordinate Bench, in the case of Rakesh Sha Vs. State of West Bengal reported in 2023 SCC Online Cal 2463 relying upon the judgment of Subhas Yadav Vs. State of West Bengal reported in 2023 SCC Online Cal 313 and Sagar Parshuram Josh Vs. State of Maharashtra reported in 2021 SCC Online Bom 3051 held that filing of a charge sheet without the examination report, in relation to an offence under the NDPS Act, is an exercise in futility and raises the presumption of the IO filing a cipher only for the sake of closing the first window of the 180 days under the proviso to 36(A) (4) of the Act and therefore the petitioner was released on bail as the materials placed before the court falls significantly short of the statutory mandate of the proviso to section 36(A) (4) as well as procedural infirmity of a C.S. sans the chemical examination report. In Idul Mia’s Case (Supra) a Division Bench of this court which took note of the fact that Jammu & Kashmir High Court as well as Bombay High Court have taken the view that the right of statutory bail does not accrue in favour of an accused, if a charge sheet containing the particulars mentioned in 167(2) Cr.P.C. is filed within the stipulated time period, even if the charge sheet is not accompanied by the FSL report but since a co-ordinate Bench of this High Court in Rakesh Sha case (supra) has taken a contrary view, following judicial discipline, bail was granted to the petitioner Idul Mia.

Be it mentioned that neither in the Rakesh Sha Case (Supra) nor in the case of Idul Mia (Supra), the Court was made aware of the decisions rendered earlier by co ordinate Bench in the cases of Ebrahim Hussain and another (Supra), Raju Mondal (supra) and Debasish Tarafdar (supra) which are binding precedent on the subsequent Co ordinate Benches.

It is also to be noted that the Division Bench, while passed the judgment in the case of Rakesh Shah (supra) relied upon the judgment of Subhas Yadav (supra) but in the said judgment of Subhas Yadav (Supra) the issue as to whether a charge sheet sans the chemical examination report, would entitle the accused to default bail or not did not fall for consideration before the special Bench. Therefore, the judgment passed in Subhas Yadav (Supra) cannot have any application to decide the instant issue i.e. whether non filing of chemical examination report with the charge sheet within 180 days of arrest gives rise to statutory bail/default bail to the petitioner or not.

In the said Rakesh Sha (supra) judgement reliance had also been placed on Sagar Parshuram Joshi, case reported in 2021 SCC Online Bom 3051 but said judgment of the Bombay High Court passed by a Single Bench subsequently overruled by the same Bombay High court in Manas Krishna T.K. Vs. State reported in 2021 SCC Online Bom 2955, wherein it was held that even in an NDPS case a police report containing the details prescribed under section 173(2) Cr.P.C., is a complete police report or a charge sheet or a challan even if it is unaccompanied by a CA/FSL report. If such police report is filed within the period stipulated under section 167(2) Cr.P.C. read with section 36-A(4) of the NDPS Act, the accused cannot insist upon a default bail.

In short the judgment passed in Idul Mia (supra) had only relied upon the judgement of Rakesh Shah (Supra) and in consideration of judicial discipline but the earlier judgements of co-ordinate Bench of this High court in the cases of Ebrahim Hussain (supra), Debasish Tarafdar (supra), Raju Mondal (supra) were not drawn to the attention of the co-ordinate Bench. On the other hand while the judgment passed in the case of Rakesh shah (supra) there also the binding precedent of Ebrahim Hussain (Supra) Debasis Tarafdar (Supra) and Raju Mondal (Supra) were not drawn to the attention of the Division Bench. At the cost of repetition, the judgment delivered in Rakesh Sha (Supra),relying of which judgment in Idul Mia (supra) was passed, was based upon the ruling of Subhas Yadav (supra) which had not dealt with the present issue and the other judgment relied by the court in Sagar Parshuram Joshi (supra) was also overruled by the same Bombay High court in Manas Krishna T.K. (supra).

It is a fact that the issue whether charge sheet without chemical examination report entitles accused in a case under the Act of 1985 to default bail or not is pending consideration before the Supreme Court. Supreme Court has not yet decided such issue finally. Therefore, in the Ananta Barman’s Case (supra) the Division Bench of this Court came to ultimate finding which is reproduced below:-

“69. At present, the law on the subject as it stands today, lays down, a charge sheet is complete if the materials and the evidence are before Court along with the charge sheet for the Court to take cognizance. Filing of the supplementary charge sheet in order to bring on record the forensic laboratory test report is also permissible. Law as its stands today also requires the Courts to decide an application for grant of bail, notwithstanding the pendency of the issue as to whether, chemical examination report must accompany the charge sheet or not. Two High Courts namely Bombay and Guwahati have held that charge sheet without the chemical examination report does not entitle the accused to a default bail.

On the strength of the authorities presently subsisting, we are not in a position to return a finding that the charge sheet without the chemical examination report makes the investigation incomplete. The first issue is answered accordingly.”

At this stage it would not be out of context to refer the rule of per incuriam as decided in the case of Manas Krishna T.K., reported in 2021 SCC Online Bom 2955, where it was held para 45 and 46 are as follows:-

The rule of “per incuriam” has been developed as an exception to the Doctrine of Judicial Precedent. Literally, it means judgment passed in ignorance of a relevant statute or any ignorance of a previous decision of its own or of a Court of coordinate jurisdiction or a superior court which covered a case before it. A judgment can also be “per incuriam” if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a coequal or larger Bench or if the decision of a High Court does not align with the views of the Supreme Court. (See Shah Faesal v. Union of India - (2020) 4 SCC 1).

The discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, the certainty of law, consistency of rulings, and comity of courts would become a costly casualty. Therefore, Judicial discipline envisages that a coordinate bench follows the decisions of an earlier coordinate bench. If a coordinate bench does not agree with the principles of law enunciated by another bench, the matter may be referred only to a larger bench. But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate bench. (See State of Punjab v. Diwan's Modern Breweries Ltd. - (2004) 11 SCC 26; and Roger Shashoua v. Mukesh Sharma - (2017) 14 SCC 722)(Emphasis added)

So far as the second issue as to whether the present matter is required to be referred before a larger bench the said Division Bench in Ananta Barman cases also replied in para 72 & 73 as follows:-

“72. So far as the third issue is concerned, we find that, three coordinate Benches judgments rendered in Ebrahim Hossain (supra), Debasish Tarafdar (supra) and Raju Mondal (supra) are binding upon us. They are first in point of time and required to be followed by the subsequent Division Benches. Two subsequent Division Benches did not follow the ratio laid down in Ebrahim Hossain (supra), Debasish Tarafdar (supra) and Raju Mondal (supra) since apparently, attention of those two division benches were not drawn to such authorities.

Be that as it may, since Ebrahim Hossain (supra), Debasish Tarafdar (supra) and Raju Mondal (supra) are binding upon us, are not in a position to take a view which is contrary to that returned in those three biding authorities. We need not refer any issue to the larger Bench as suggested. The third issue is answered accordingly.”

In view of aforesaid discussion it is clear that the Division Bench of this High Court has clearly laid down the law in Ananta Barman’s case that so long the issue as to whether charge sheet within the statutory period without the chemical examination report entitles the accused, in a case under the Act of 1985, to default bail, is pending for consideration before the Supreme Court, the law on this subject as it stands today is that a charge sheet is complete, if the materials and the evidence are before court along with the charge sheet for taking cognizance. Filing of supplementary charge sheet in order to bring on record the forensic laboratory test report is also permissible and a charge sheet without the chemical examination report filed within time is nonetheless a charge sheet, which disentitles the accused to default bail. The aforesaid ratio laid down in Ananta Barman’s Case has a binding precedent upon this court

In this context it is also worthy to be mentioned that the Supreme Court elaborately discussed the doctrine of binding precedent in the judgment of Chandra Prakash and others Vs. State of U.P. and another reported in (2002) 4 SCC 234 where in it was held as follows:-

A careful perusal of the above judgments shows that this Court took note of the hierarchical character of the judicial system in India. It also held that it is of paramount importance that the law declared by this Court should be certain, clear and consistent. As stated in the above judgments, it is of common knowledge that most of the decisions of this Court are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the disputes between them but also because in doing so they embody a declaration of law operating as a binding principle in future cases. The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court. It is in the above context, this Court in the case of Raghubir Singh [(1989) 2 SCC 754] held that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or smaller number of Judges. It is in furtherance of this enunciation of law, this Court in the latter judgment of Parija [(2002) 1 SCC 1] held that : (SCC p. 4, para 6)

“But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified.” (Emphasis Added)

Since the pronouncement of law by the Division Bench in Ananta Barman Case (supra) is binding upon this court for the time being, so petitioner is not entitled to default bail nor he is on the same footing with the other co accused who have been granted bail relying the case of Idul Mia.

Now so far as the prayer for bail on the merits of allegation, it appears that the rigour of section 37 of NDPS Act clearly attract in respect of the present petitioner in the facts and circumstances of the case, as well as from the materials placed before me. Submission made by learned Counsel for the State that charge has already been framed and the recording of evidence is going to start shortly is also taken care of. Considering what is discussed above, the prayer for bail made by the petitioner stands rejected.

CRM (NDPS) 418 of 2025 thus stands disposed of.

Urgent Xerox certified photocopies of this Judgment, if applied for, be given to the parties upon compliance of the requisite formalities.