Page No.# 1/9 GAHC010060692025 2025:GAU-AS:14482 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1130/2025 SUJONUR ROSHID S/O HARUNAR RASHID VILL- SHILA, P.O. AND P.S. KRISHNAI DIST. GOALPARA, ASSAM PIN-783126 VERSUS THE UNION OF INDIA REP BY THE INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE, GUWAHATI ZONAL UNIT, GUWAHATI Advocate for the Petitioner : MS. A. MEDHI, Advocate for the Respondent : SC, DRI, Page No.# 2/9 BEFORE HON’BLE MR. JUSTICE PRANJAL DAS O R D E R 29.10.2025 Heard Ms. A. Medhi, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned Standing Counsel for the DRI. 2. The instant bail application has been filed under the provisions of 483 BNSS 2023, seeking bail for the accused Sujonur Rashid, who is stated to be in under trial detention since 10-03-2024 in connection with NDPS Case No. 315 of 2024. His case is stated to be pending before the Court of the learned Additional Sessions Judge No.2, Kamrup (M) Guwahati. 3. The aforesaid NDPS case arose out of DRI Case No.26/CL/NDPS/MORPHINE/DRI/GZU/2023-24 under Sections 8(C)/22(c)/23(c) of the NDPS Act. 4. The allegations in the FIR is that based on an information, the Kanchanjunga Express coming from Agartala on the way to Sealdah in West Bengal, Kolkata was searched with regard to the petitioner and from his possession morphine tablets were found in three numbers of transparent plastic pouches. The quantity of the seed morphine stated to be 2015 grams and thereby falling in the bracket of commercial quantity. 5. This is a subsequent bail petition as an earlier bail petition on behalf of the accused was rejected by this court by the order dated 03-01-2025 passed in Bail Page No.# 3/9 Appln. No. 3755/2024. The learned Judge who had passed that previous order is presently an Hon’ble Judge of the Orissa High Court and therefore, I proceed to take up this matter which is a subsequent bail petition. 6. Heard A. Medhi learned counsel for the petitioner. 7. One of the primary contentions is that though the statutory period applicable in an instant case is 180 days being commercial quantity but the charge-sheet, which was filed initially within the statutory period did not have the FSL report and that supplementary charge-sheet along with FSL report was filed on 28-11-2024 constituting 295 days after his arrest. 8. In this backdrop, it is contended by the petitioner counsel that the charge- sheet cannot be taken to have been filed in a proper manner within the statutory period of 180 days and that being so, the petitioner had become entitled to default bail at that time and therefore, he seeks a bail at this stage by way of default bail. 9. In support of her contentions, the petitioner side has relied upon a decision of the Calcutta High Court in the case of In re Idul Mia reported in 2024 SCC Online Cal 9109, wherein, it was held in paragraph 14 as follows:- “In view of the undisputed fact that in the present case the charge-sheet although filed within the period of 180 days was not accompanied by the FSL report and that the FSL report was filed as part of the supplementary chart sheet filed beyond 180 days from the date of arrest of the petitioner and after he applied for statutory bail. We have to hold that upon expiry of 180 days the petitioner became entitled to statutory or default bail and the learned trial court erred in not extending that privilege to the petitioner.” 10. It is contended by the petitioner side that that principle enunciated by the Calcutta High Court should also be applied in the instant case and the accused Page No.# 4/9 should be allowed to go on statutory bail. 11. On the other hand, Mr. S.C. Keyal, learned Standing Counsel, DRI, assisted by Ms. N. Kakati learned counsel appearing for the NCB submits that the earlier bail petition which was rejected, had addressed the issue already and held after referring to several case laws that the petitioner is not entitled to default bail. 12. It is submitted by the learned prosecution that the drug detection test at the time of seizure gave a positive test for morphine and therefore, the charge- sheet filed without FSL within 180 days is a valid charge-sheet and that the subsequent filing of the FSL report beyond 180 days will not make the charge- sheet filed earlier charge-sheet invalid and would not entitle the petitioner for default bail. 13. The learned prosecution has referred to the judgment of the Hon’ble Supreme Court in the case of Hanif Ansari vs State (NCT of Delhi) reported in 2024 SCC Online SC 537. 14. I have considered the materials of the scanned case record called for and placed before the court. I perused the relevant portions thereof and considered the submissions of both the sides. 15. The issue is whether filing a charge-sheet in an NDPS case without FSL would constitute a valid charge-sheet and if such a charge-sheet is filed within the statutory period without FSL report and the FSL report comes to be filed subsequently beyond the statutory period, then would the petitioner in such a case be entitled to default bail. 16. Upon perusing the case laws submitted at the Bar, it is clear that that Page No.# 5/9 issue has already been referred to a larger bench in the case of Hanif Ansari (Supra). The relevant para-8 may be reproduced herein below:- “In view of there being diversity of views of different Benches of this Court even on the question of granting interim bail, we are of the opinion that a larger Bench may decide the question as to whether failure on the part of the prosecution to include the FSL report pertaining to the seized contraband article(s) along with the charge-sheet, within the time specified in Section 167(2) of the Code read with Section 36A of the NDPS Act, would entitle the accused to default bail or not.” 17. A two-Judge Bench of the Hon’ble Supreme Court in the case of Central Bureau of Investigation vs Kapil Wadhawan and another reported in (2024) 3 SCC 734, dealt with this question and its impact on bail plea of an accused. In para 23 of the same judgment may be reproduced here in below:- “The benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to the offender only when a charge-sheet is not filed and the investigation is kept pending against him. Once however, a charge-sheet is filed, the said right ceases. It may be noted that the right of the investigating officer to pray for further investigation in terms of sub-section (8) of Section 173 is not taken away only because a charge- sheet is filed under sub-section (2) thereof against the accused. Though ordinarily all documents relied upon by the prosecution should accompany the charge-sheet, nonetheless for some reasons, if all the documents are not filed along with the charge-sheet, that reason by itself would not invalidate or vitiate the charge-sheet. It is also well settled that the court takes cognizance of the offence and not the offender. Once from the material produced along with the charge- sheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of charge-sheet would neither vitiate the charge-sheet, nor would it entitle the accused to claim right to get default bail on the ground that the charge-sheet was an incomplete charge-sheet or that the charge-sheet was not filed in terms of Section 173(2) of Cr.P.C.” Page No.# 6/9 18. Thus, I find that while the resolution of the question is pending before a larger bench of three judges of the Hon’ble Supreme Court, the position of law rendered by two-judge bench in the case of Kapil Wadhawan (Supra) reveals that the benefit of default bail would be available to the offender only when a charge sheet is not filed and investigation is kept pending. 19. But once a charge sheet is filed, the said right ceases. It is stated that once the court is satisfied from the charge sheet about commission of the offence, it would be immaterial whether further investigation is pending or not and the pendency of further investigation or for production of some documents not available at the time of filing of charge sheet would neither vitiate the charge sheet nor entitle the accused to claim right to default bail on the ground that the charge sheet was not a complete charge-sheet. Thus, till the resolution of the issue by a larger bench of three judges, the principles enunciated in Kapil Wadhawan (supra) by the two-judge bench of the Hon’ble Supreme Court would be the governing law on the matter and this court is bound by the principles enunciated in the said decision. 20. And therefore, filing of the charge sheet within the statutory period, without however the FSL and the filing of the FSL after the statutory period would not entitle the accused to get default bail. The aforesaid aspect has already been gone into with the previous bail order dated 03/01/2025 BA No. 3755/2024 and after addressing issue, this court had rejected the plea of the petitioner for grant of default bail. Thus, the principle of issue estoppel might be applicable in the instant case and as the said point has already been decided by a coordinate bench of this court in the earlier bail application of the accused. 21. This court in the present bail matter would not be inclined to take a different view. In the event of taking a different view, perhaps the matter would Page No.# 7/9 have to be referred to a larger bench which also would be untenable because the Hon’ble Supreme Court is already seized of the matter and an authoritative pronouncement on this question is pending for adjudication before the Hon’ble Supreme Court. 22. Thus, I come to the considered opinion that the charge sheet which was filed in this case within the period of 180 days without the FSL report and the FSL report having been filed after 295 days, the initial charge sheet would not be vitiated and the present petitioner would not be entitled to default bail. 23. Further, as the quantity in question is a commercial quantity, the rigors of section 37 of the NDPS Act would be applicable and on merits, the court will be able to consider giving granting bail to the accused only if it comes to the opinion that on the basis of the materials, there are reasonable grounds for holding that the accused is not guilty. 24. Thus, for this purpose, I perused the relevant portions of the case record. The preliminary test conducted using the drug testing kit on 09-03-2024 is perused and it shows giving positive result for morphine. 25. It is stated in the investigation that the worth of the 2015 grams of morphine would be about 10,07,50,000/- in the black market. I find from the case record that on 12-12-2024, the charge has already been framed against the petitioner by the learned court below under section 21(C) of the NDPS Act. And therefore, the case is at the presently at the stage of trial. 26. I have also perused the inventory documents certified by the learned Magistrate. I have perused a copy of the seizure memo dated 10-3-2024 regarding the seizure from the present petitioner accused. The inventory document certified by the Magistrate on 14-3-2024 indicates 2015 grams of Page No.# 8/9 brown coloured powdery substance believed to be morphine. 27. I have also perused the statement of the accused petitioner himself recorded during investigation. The seizure list indicated two witnesses namely Rituraj Bailung and Nayan Roy. The statements of the said two seizure witnesses are available in the scanned record and I have perused the same. 28. The seized witnesses have cogently stated that they were approached by the DRI officials after introducing themselves, to participate in a search operation and accordingly they did so. The seizure witnesses have described as to how the present petitioner was a passenger in the Agartala to Sealdah (Kanchanjanga Express) in coach number A1 and seat number 31, where he was identified and that the identification tallied with the intelligence received by the DRI officials as stated to the seizure witnesses and thereafter he was de- boarded from the train and taken to the DRI office where from the bags he was carrying they found three plastic pouches, two medium-sized and one small containing brownish powdery substance and these were tested by the kit and found to be morphine. From the statements of the seizure witnesses, I find that they have cogently supported the seizure of the contraband in the nature of commercial quantity of morphine from the bag of the accused petitioner that he was carrying in the train. 29. So, on the basis of the materials discussed above including the seizure memo, the inventory documents, statements of the seizure witnesses, it is not possible to hold that there are reasonable grounds to believe that the accused is not guilty. 30. Therefore, the test of section 37 NDPS Act is not passed in favour of the present accused petitioner and hence this court is statutorily prohibited from Page No.# 9/9 granting bail to the accused, at this stage of the trial. The instant bail petition stands accordingly dismissed and disposed of on the aforesaid terms. JUDGE Comparing Assistant