[This Article has been authored by Angela Joe Manukat,  a 3rd Year B.A., LL.B. student at National Law University, Jodhpur.] 

Introduction

Can an individual be denied default bail for possessing a substance that has never been scientifically established to be a narcotic substance? This is the issue at the heart of a legal controversy that has divided High Courts throughout the country. Whether the failure to include a Forensic Science Laboratory (FSL) report along with the chargesheet in cases involving narcotic drugs entitles the accused to default bail under Section 187(3) of the BNSS remains unresolved, and the Supreme Court’s clarification on the matter continues to be eagerly awaited. This article argues that it should, and that the case for granting default bail is especially convincing in matters involving processed and synthetic drugs. 

The Statutory Framework

For offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the period prescribed for filing the chargesheet is 90 days, and in cases involving commercial quantities, it is 180 days, as per Section 187(3) of the BNSS read with Section 36A of the NDPS Act. Failure to comply with these statutory requirements entitles the accused to default bail under Section 187(3) of the BNSS. This right crystallises automatically upon the expiry of the prescribed period. 

Section 193(3)(i) of the BNSS provides that a chargesheet must contain all the material that the prosecution rests its case upon. The provision further specifies eight categories of information that must be included in the chargesheet by the police before forwarding it to the magistrate. These eight points provide basic preliminary information, such as whether an offence appears to have been committed, names of the parties, etc. Accordingly, the law mandates that the chargesheet must be filed within the prescribed time limit and must be complete with respect to these basic but essential information. In the context of NDPS cases, this requirement cannot be satisfied without forensic confirmation of the identity of the seized material, as there is no NDPS offence unless the seized material is established to be a narcotic drug or psychotropic substance, and such confirmation can only be supplied by an FSL report. 

Notably, Rule 14 of the Narcotic Drugs and Psychotropic Substances Rules (Seizure, Storage, Sampling and Disposal) 2022 also provides that the FSL report must be submitted to the Magistrate within 15 days from the receipt of the seized sample. In Jagdish Singh v. State of West Bengal, it was observed that since the law provides a specific timeline, there must not be unnecessary delays in filing the FSL report. 

FSL Report is the Foundation of an NDPS case

Specifically with regard to NDPS cases, court have, in certain instances, held that an FSL report must be included in the chargesheet for it to be considered complete.  The Punjab & Haryana HC in  held that “a FSL report forms the foundation of the prosecution’s case… If not produced, the entire case falls to the ground as the prosecution fails to prove that the seized substance is indeed a narcotic drug.” Therefore, in NDPS cases, the FSL report is necessary to establish requirement under Section 193(3)(i)(d), that is, whether any offence appears to have been committed as in such cases, the identity of the seized substance itself constitutes the very basis of the offence.

A distinction must be made vis-à-vis NDPS case and other cases, such as murder, wherein multiple evidentiary elements independently establish guilt. For instance, an  FSL report helps shed light on the type of gun used by the accused or whether the bullet found on the victim’s person belonged to the weapon of the accused, but there exists other evidence that helps prove the guilt of the accused. In contrast, in NDPS cases, the guilt of the accused relies solely on the chemical structure of the seized substance, which indicates that it is a narcotic drug. Therefore, a chargesheet without an FSL report must be considered incomplete. 

In this regard, Justice K. Shinde in the case of Sagar Parshuram Joshi v. The State of Maharashtra observed that the FSL report is a crucial part of an NDPS investigation as it provides scientific confirmation of the identity of the seized substance, and that without it, the Magistrate cannot take cognisance of the offence.

Why Spot testing kits are unreliable?

In NDPS cases, to get a preliminary understanding of the seized substance, the police use spot testing kits that are employed at the crime scene itself. These tests involve mixing a certain quantity of the seized substance with a reagent. When the substance mixes with the reagent, it changes its colour according to its nature, for example, if the substance is cocaine, it produces a reddish-brown colour. However, such tests only help the police achieve a preliminary understanding and do not provide any scientific confirmation. 

In  Sagar Parshuram Joshi v. The State of Maharashtra, it was observed that India lacks standardised testing parameters as seen in jurisdictions such as the United States, where the National Institute of Justice has laid down detailed guidelines for field testing. Due to the lack of such uniform parameters, the interpretation of the results of these tests is entirely up to the subjective perception of the police, making the results of these tests indicative at best and not conclusive evidence. 

Why granting default bail in NDPS cases falls in line with existing bail jurisprudence?

The judgments in Ritu Chhabaria v. Union of India and CBI v. Kapil Wadhawan have helped shape the jurisprudence of default bail in India. In  Ritu Chhabaria, it was held that default bail is not merely a statutory right under Section 187(3) but also a fundamental right flowing from Article 21 of the Constitution. Justice Murari held that the onus is on the investigating agency to complete the investigation within the prescribed time period, and failure to do so must result in default bail being granted to the accused.                         

The Supreme Court in Kapil Wadhawan ruled that merely because some aspects of the investigation remain pending, the chargesheet filed within the prescribed period does not become invalid, and the accused is not entitled to default bail. Although both judgments on face value seem contradictory, when read together, they provide a clear test that the chargesheet must contain the required evidence to establish the commission of the offence. Supporting documents may follow; the core evidence may not. 

In NDPS cases, the FSL report is not a supporting document but the primary evidence on which the proof of any offence under the NDPS Act hinges. Therefore, non-filing of this report along with the chargesheet fails this test, making the chargesheet incomplete and entitling the accused to default bail. 

Natural Drugs versus Processed Drugs

An important distinction in NDPS cases must be made between natural narcotic drugs such as ganja, charas, and their refined or processed derivatives, such as cocaine and heroin, which are circulated as white, off-white or brown powder, crystals, or flakes or colourless, odourless liquids. The Handbook (Chapter VII) by the NCB clearly states that natural drugs such as ganja, charas, opium, etc, can be identified through their colour, texture or smell. In the case of processed drugs, it is very difficult to identify the seized substance as a narcotic in the field unless it is tested with different reagents. However, since such field tests are only indicative in nature, it is quite possible that despite a positive result through the spot testing kit, an FSL report on the same seized substance will show a negative result. 

The Human Cost

In July 2017, a chargesheet was filed, and charges were framed against 3 women for the possession of smack, even though the FSL report was still pending. When the report arrived in May 2018, it was discovered that no narcotic substance had been seized. When the three women were finally acquitted by the Delhi Special Court in 2024, the judge held that since no contraband was seized, the NDPS Act should not have been invoked in the case. 

In another case, four persons in Indore were accused of possession of 198 grams of MD drugs. Later on, the FSL report confirmed that the seized substance was not a narcotic drug and based on this confirmation, the Special Judge acquitted all four accused. These cases are not outliers but rather a foreseeable consequence of allowing prosecutions to proceed without scientific confirmation of the most basic element of the alleged offence. 

Conclusion

The Delhi High Court recently held that non-filing of an FSL report with a chargesheet does not, on its own, grant the accused an indefeasible right to default bail in NDPS cases.  This approach, however, ignores what makes NDPS cases inherently distinct from all other criminal prosecutions. In most cases, the FSL report is corroborative, but in NDPS cases, especially those involving synthetic drugs, it is fundamental. In the absence of such a report, there is no scientific basis for concluding that an NDPS offence has been committed. 

Continuing to hold a person in custody beyond the statutory period of 180 days solely based on a field officer’s suspicion, and without scientific proof is to deprive a person of liberty on unverified assumptions. This is exactly what Article 21 of the Constitution and the default bail jurisprudence in India seek to prevent. Therefore, the Supreme Court’s ruling on this question, presently pending before a larger bench in Hanif Ansari v. State, is eagerly awaited.