At present, the correct legal position is that default bail is not automatic merely because the CA/FSL report was not filed with the chargesheet. However, in a given case, the accused may still contend that the chargesheet is incomplete if the report is indispensable to establish that the seized substance is in fact a narcotic drug or psychotropic substance.
Statutory background
Section 36A(4) of the NDPS Act provides a longer period for investigation in serious NDPS offences, namely 180 days, which may be extended on a proper report of the Public Prosecutor. If no valid police report is filed within that period, the accused gets an indefeasible right to default bail under Section 167(2) CrPC, now reflected in Section 187 BNSS.
The controversy is not about the period of 180 days. The controversy is about what amounts to a complete police report in an NDPS case where the CA/FSL report is still awaited.
Why CA/FSL report assumes importance in NDPS cases
In many NDPS prosecutions, the CA/FSL report is the scientific material which shows the exact nature of the seized substance. Without that report, it may be argued that the Court cannot properly determine whether the recovered article is ganja, charas, heroin, MDMA, or any other prohibited substance under the NDPS Act.
For that reason, one line of cases says that where the scientific report is foundational to the prosecution, a chargesheet without it may be treated as incomplete. The other line says that once the police file a report satisfying Section 173(2) CrPC within time, later filing of CA/FSL report does not revive the right to default bail.
Bombay High Court view in favour of accused
In Sagar Parshuram Joshi v. State of Maharashtra, the Bombay High Court held that where the CA report was essential and was not filed, the accused could claim default bail. The reasoning was that if the report is necessary to establish the very nature of the contraband, then in its absence the investigation cannot be said to be complete in the real sense.
This judgment is important for the defence because it supports the submission that in NDPS cases, the CA/FSL report may not be a mere formality. In a proper case, its absence may affect the completeness of the chargesheet itself.
Bombay High Court contrary view
However, in Aleksander Kurganov v. State, the Bombay High Court took a different view and held that mere non-filing of the FSL report does not by itself make the chargesheet incomplete. The Court emphasized that where the police report under Section 173(2) CrPC is filed within time, and there is other prima facie material such as field testing, the accused does not automatically get default bail.
This is a significant judgment because it represents the more prosecution-oriented view. According to this approach, the CA/FSL report can be filed later and its absence at the initial stage does not necessarily defeat the chargesheet.
Conflict noticed by Bombay High Court
The conflict between these two Bombay High Court decisions was noticed in Manas Krishna T.K. v. State. This is important because it shows that even within Bombay High Court there is no single, uniform view on the question.
Later decisions have also shown that the issue may depend on the facts of each case, such as the nature of the substance, the existence of field test material, and whether the available papers are sufficient to prima facie show commission of the NDPS offence.
Supreme Court reference
The issue has now reached the Supreme Court in a direct and substantial form. In Hanif Ansari v. State (Govt. of NCT of Delhi), SLP (Crl.) No. 15293 of 2023, the Supreme Court referred to a larger Bench the question whether non-filing of the FSL report along with the chargesheet within the statutory period under Section 167(2) CrPC read with Section 36A of the NDPS Act entitles the accused to default bail.
Therefore, the exact legal question remains open at the highest level. Until the larger Bench decides it, courts will continue to rely on the existing lines of authority.
Present legal position
As on date, the most correct statement is this:
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There is no final conclusive Supreme Court judgment yet on this exact NDPS issue.
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The issue stands referred to a larger Bench in Hanif Ansari.
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In Bombay High Court, there are conflicting decisions — Sagar Parshuram Joshi on one side and Aleksander Kurganov on the other.
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Default bail is not automatic merely because CA/FSL report is not filed with the chargesheet.
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The question is fact-sensitive and may depend on whether the report is indispensable to show the nature of the contraband and whether other prima facie material is available.
Practical takeaway
Thus, where the chargesheet is filed in time and contains sufficient prima facie material, the prosecution will argue that the right to default bail stands defeated. On the other hand, where the CA/FSL report is the only real basis to establish that the seized substance falls under the NDPS Act, the defence may still argue that the chargesheet is incomplete and that default bail has accrued.
The final authoritative answer now awaits the Supreme Court’s larger Bench in Hanif Ansari.
Conclusion
The controversy regarding non-filing of CA/FSL report with the chargesheet in NDPS cases lies at the intersection of two competing concerns: the accused’s statutory right to default bail and the prosecution’s reliance on a chargesheet filed within time. Bombay High Court decisions show both approaches, while the Supreme Court has yet to settle the issue finally.
Until then, the safest formulation is that mere absence of CA/FSL report does not automatically confer default bail, but in an appropriate case it may still be argued that the chargesheet is incomplete if the report is indispensable to establish the offence.
Short headnote
NDPS Act — Default bail — Chargesheet filed within statutory period without CA/FSL report — Whether chargesheet is incomplete — Conflicting Bombay High Court views — Issue referred by Supreme Court to larger Bench in Hanif Ansari v. State (Govt. of NCT of Delhi) — Present position, default bail not automatic; issue fact-sensitive.