1. Instant revision is filed by the petitioner assailing the impugned order dated 15th November, 2025 passed in connection with Special G.R. No. 74 of 2025 by the learned Sessions Judge-cum-Special Judge, Malkangiri, whereby, an application under Section 187(3) of BNSS moved by him seeking release on default bail was declined and rejected on the grounds stated.

2. The petitioner is in custody in Malkangiri P.S. Case No.248 of 2025 dated 19th May, 2025 registered under Sections 20(b)(ii)(C), 25 and 29 of the NDPS Act, 1985 on the basis of the FIR drawn by the informant, namely, S.I. of Police of the said P.S. alleging therein about the incident claiming that while he was performing MV checking duty at Goudaguda Chowk, Malkangiri at about 1.30 P.M., two vehicles arrived and on suspicion, they were stopped and in one of the vehicles, a white colour Bolero Neo, the driver was detained and there was an occupant in the other vehicle, a TATA Pickup van and he managed to escape and on being asked, the driver of the said van disclosed his identity and both confessed that the vehicles are loaded with contraband Ganja and thereafter other paraphernalia was observed with the personal searches conducted in respect of the suspects in the immediate presence of the Executive Magistrate and ultimately 46 bags were found loaded with Ganja. In total, 1000 Kg of contraband Ganja was alleged to be carried in the vehicles along with empty vegetable trays. After such recovery, the petitioner, who was the driver of the TATA Pickup van was arrested along with another accused and forwarded to the Court. The petitioner is in judicial custody w.e.f. 20th May, 2025 for his involvement in such illicit transportation of Ganja punishable under the alleged offences under the NDPS Act.

3. The record reveals that the preliminary chargesheet was filed on 14th November, 2025, a day before the expiry of the prescribed period of 180 days i.e. 15th November, 2025. Since the preliminary chargesheet was filed without the chemical examination report, the petitioner claiming default bail moved the application under Section 187(3) BNSS, but it has been rejected by the learned court below by the impugned order at Annexure-1. The plea of the petitioner is that the investigation is incomplete and by 15th November, 2025, the chemical examination report had not been received and therefore, he is entitled to statutory bail, but such a request for release in terms of Section 187(3) BNSS was denied on the premise that there has been no default on the part of the prosecution. Being aggrieved by the decision of the learned court below, the revision is filed by the petitioner seeking default bail on the ground that filing of the preliminary chargesheet on 14th November, 2025 is of no consequence when by 15th November, 2025, the chemical examination report had not been received.

4. The petitioner’s plea is that in absence of the forensic report, it shall be deemed that the investigation is not complete. The further plea is that the prosecution did not seek permission to continue with the investigation from the learned court below in terms of proviso to Section 36-A(4) of the NDPS Act and therefore, under such circumstances, he is entitled to default bail under Section 187(3) BNSS. But such plea of the petitioner is opposed by the State on the ground that the chargesheet has been filed on 14th November, 2025 and hence, the plea of statutory bail cannot be entertained and rightly, therefore, the learned court below rejected the application moved under Section 187(3) BNSS and hence, the impugned order dated 15th November, 2025 at Annexure-1 calls for no interference.

5. Heard Mr. Dalai, learned counsel assisted by Mr. Dwibedi, Advocate appearing for the petitioner and Mr. Panda, learned ASC for the state.

6. A copy of the chargesheet dated 20th May, 2026 is produced before this Court at the time of hearing. After the preliminary chargesheet dated 14th November, 2025, with the closure of investigation, the final chargesheet is received by the learned court below in the month of May, 2026. Along with the final chargesheet, the case diary and other relevant documents have been produced for the Court’s perusal. In the meantime, the chemical examination report was received, a copy of which is also produced by the State.

7. Mr. Dalai, learned counsel for the petitioner submits that in absence of a chemical examination report filed along with the chargesheet on 14th November, 2025, the investigation is incomplete. Referring to the orders of the Apex Court in SLP (Crl.) Nos.8164-8166 of 2021 (Mohd. Arbaz & others Vrs. State of NCT of Delhi) dated 9th November, 2022; SLP (Crl.) No.1929 of 2023: Suleman Vrs. The State (Govt. of NCT of Delhi) dated 17th April, 2023; SLP (Crl.) No. 11628 of 2022 (Divyas Bardewa Vrs. Narcotics Control Bureau dated 1st May, 2023; SLP (Crl.) No.6865-6866 of 2023 (Tapan Barman & others Vrs. The State of West Bengal) dated 26th July, 2023; SLP (Crl.) No.8610 of 2023: Arif Khan Vrs. State (Govt. of NCT of Delhi) dated 28th July,2023; and SLP (Crl.) No.40633 of 2024: Bhushan @ Veera Vrs. State (NCT of Delhi)) dated 10th September, 2024, Mr. Dalai, learned counsel would submit that the petitioner should be allowed to go on default bail. The submission is that if the Court is not inclined to release the petitioner on bail, at least, such release should be directed as an interim measure pending decision of a Larger Bench of the Apex Court in view of the order in Mohd. Arbaz (supra) dated 12th July, 2023 in connection with SLP (Crl.) No.5724 of 2023. The contention of Mr. Dalai, learned counsel is that in Bhushan @ Veera (supra), interim bail was granted to the accused by the High Court as revealed from the order therein dated 10th September, 2024, hence, the petitioner is also entitled to the same and to the contrary, Mr. Panda, learned ASC submits that the Apex Court in other cases referred to hereinabove directed release in exercise of powers under Article 142 of the Constitution of India. The further submission is that when the matter is sub judice before the Apex Court even on the question of grant of interim bail, any such demand of the petitioner should not be entertained. A reference is made to an order of the Apex Court in SLP(Crl.) No.15293 of 2023 dated 19th March, 2024 in Hanif Ansari Vrs. State (Govt. of NCT of Delhi) by Mr. Panda, learned ASC to submit that such a question of granting interim bail is also pending decision by a Larger Bench and therefore, the petitioner should not be granted any such relief even as an interim measure.

8. In view of the decision of the Apex Court in Central Bureau of Investigation Vrs. Kapil Wadhawan & another 2024 INSC 15 vis-à-vis incomplete chargesheet and its impact on the bail plea of the accused denying statutory bail on any such ground and as there has been divergent views expressed in other cases even on the question of granting interim bail, the matter has been deferred to a Larger Bench for a decision as to whether failure on the part of the prosecution to include the forensic report pertaining to the seized contraband articles along with the chargesheet within the time specified under Section 167(2) Cr.P.C. read with Section 187(3) BNSS and Section 36-A of the NDPS Act would entitle an accused to default bail or otherwise.

9. It is a settled principle of law that not only fair trial but also proper investigation is guaranteed under Articles 20 and 21 of the Constitution of India. In other words, investigation must be fair, transparent and judicious as it is the minimum requirement of the rule of law. In Babu Bhai Vrs. State of Gujarat & others (2010) 12 SCC 254, it is held and observed that the investigation shall have to be fair and judicious, adhering to the basic tenets of law and the investigating agency cannot be permitted to conduct investigation in a tainted and biased manner. In State of Maharashtra Vrs. Saradchandra Vinayak Dongre and others (1995) 1 SCC 42, it has been held by the Apex Court that the purpose of submission of the police report with all details is to enable the Magistrate to satisfy himself whether on the basis of the report and the materials filed along with it, a case for taking cognizance of the offences has been made out and on a satisfaction reached at in that regard, to proceed further in accordance with the provisions of the Cr.P.C. and thus such power is not fettered by any label, which the investigating agency chooses to give the report submitted under Section 173(2) Cr.P.C. It has been held therein that merely because the prosecution filed an application after submission of the chargesheet seeking permission to file supplementary chargesheet, it is not to affect the jurisdiction of the Magistrate, who may take cognizance of the offence, if he was otherwise satisfied from the materials placed along with the chargesheet. It is also held therein that the jurisdiction of the Magistrate and the Magistrate alone to decide whether the materials placed by the prosecution with the report was sufficient to take cognizance or not.

10. In the case at hand, a preliminary chargesheet is filed and admittedly without the FSL report and whether on that basis the petitioner is entitled to default bail claiming that the investigation is incomplete without such report. Mr. Dalai, learned counsel submits that since the matter is pending before the Apex Court, the petitioner should be allowed to go on bail like in other cases directing an interim release at least for a month, which is opposed by Mr. Panda, learned ASC for the State. The purpose of citing the decisions referred to hereinabove on the power of a Magistrate to take cognizance of offence even on a preliminary chargesheet is to suggest that such an exercise is undertaken considering the materials filed therewith. It shall be a subjective satisfaction of a Court to consider whether on the basis of a chargesheet even without any such report is sufficient to take cognizance of offences alleged. It is settled law that the power of a Magistrate to take cognizance cannot be controlled by the investigating agency whose duty is only to investigate and place the facts and evidence collected during investigation before him and even any such permission to submit a supplementary chargesheet is not to vitiate taking cognizance nor denude him of his jurisdiction to take cognizance of the offences. In the instant case, the chargesheet is submitted without an FSL report. The plea of the petitioner is that without a forensic report, it cannot be claimed that the seizure article is Ganja. In the case of the petitioner, the preliminary chargesheet is filed in the month of November, 2025 keeping the investigation open in terms of Section 173(8) Cr.P.C. The submission of Mr. Dalai, learned counsel is to the effect that incomplete investigation and filing of a preliminary chargesheet is no investigation in the eye of law and hence, by 15th November, 2025, it shall be deemed that there was no chargesheet filed as it was not accompanied with the FSL report, hence, the plea of release on default bail.

11. The Apex Court in Ritu Chhabaria Vrs. Union of India and others 2023 SCC OnLine SC 502 held that the investigation is to be completed and only then the chargesheet is to be filed within the stipulated period and failure to do so would trigger the statutory right of default bail under Section 167(2) Cr.P.C. Similarly, in Union of India Vrs. Thamisharasi & others (1995) 4 SCC 190, it is observed by the Apex Court that if the investigation was not complete and the chargesheet was not filed within the period prescribed under law, denial of default bail was held to be in violation of the Article 21 of the Constitution of India and concluded that the accused cannot be continued to remain in custody beyond the maximum time stipulated without offering default bail to him. In Sanjay Dutt Vrs. State (1994) 5 SCC 410, it has been held that if the accused applies for bail on expiry of the prescribed period, he has to be released on bail forthwith. It is also held therein that the right of the accused to be released on bail after filing of the challan (chargesheet) notwithstanding the default in filing it within the time allowed is governed by the provisions relating to grant of bail and hence, bail under proviso (a) to Section 167 (2) Cr.P.C. is no more available to him. In Sanjay Dutt (Supra), the Apex Court laid down the principle that accused must apply for default bail when the right under Section 167(2) Cr.P.C. accrues to him and if he fails to do so, he cannot thereafter demand such release at a subsequent stage after the chargesheet is filed. In Dablu Kujur Vrs. State of Jharkhand (2024) 6 SCC 758, it has been held that all the documents having not been submitted as required under Section 173(5) Cr.P.C. or investigation qua some other persons having been kept open while the chargesheet is filed, the accused may claim that the requirements thereunder have not been complied with and hence, he is entitled to default bail under Section 167(2) Cr.P.C. But in Kapil Wadhawan (supra), the Apex Court held that when from the material produced along with chargesheet, the Court is satisfied about the commission of an offence and takes cognizance of the same, it is immaterial whether the further investigation in terms of Section 173(8) Cr.P.C. is in continuation. It is also held and observed therein that pendency of further investigation for production of some documents not available at the time of filing of the chargesheet would neither vitiate the chargesheet nor would it entitle the accused to claim right to default bail on the ground that the chargesheet was incomplete or not filed in terms of Section 173 (2) Cr.P.C.. In Sharif Ahmed & another Vrs. State of UP and another 2024 SCC OnLine SC 726, it has taken the view of the Apex Court in Tara Singh Vrs. State AIR 1951 SC 903 and held that a challan submitted is complete except for submission of report of the Serologist and therein, the order of cognizance was considered proper.

12. Having considered the submissions of Mr. Dalai, learned counsel for the petitioner and Mr. Panda, learned ASC for the State and the discussions hereinabove with reference to the case laws, this Court is to consider as to whether the petitioner is entitled to statutory bail under Section 187(3) BNSS for the fact that the preliminary chargesheet was not filed with the forensic report. In the considered view of the Court, the preliminary chargesheet against the petitioner is final and is not incomplete. Though a decision on the point is pending consideration before the Apex Court by a Larger Bench, this Court is also of the view that the petitioner is not entitled to interim bail. The preliminary chargesheet is filed one day before the prescribed period was to expire on 15th November,2025. Along with the preliminary chargesheet, all other relevant documents have been filed before the learned court below except the FSL report. To claim that a chargesheet is no chargesheet in the eye of law without any such report, in the considered view of the Court, is not justified, while considering the plea of statutory bail under Section 187(3) BNSS. Even on the basis of preliminary chargesheet, cognizance of the offences may be taken by the learned court below. The term ‘cognizance’ has not been defined anywhere in the Cr.P.C. but it indicates that the stage when a Court is primarily satisfied about any such incident to have taken place resulting thereby in the commission of offences defined under the law and to proceed further to enquire into the truthfulness on the allegations made in the chargesheet. The provisions under the BNSS prescribe checks and balances at different stages of the proceedings. In the initial stage when the Court is prima facie satisfied that there has been an offence committed, to take cognizance of the same. At the stage of framing of charge, further scrutiny of the materials on record made before commencement of trial.

13. A Court is only to be satisfied that there are materials to proceed against the accused upon receiving a preliminary or final chargesheet and for the absence of any report, it is not to be claimed that the investigation is incomplete. Of course, where a contraband substance like Brown sugar, a powder-like substance, is seized, the forensic report assumes importance to confirm that for such possession, the accused has committed the offences under the NDPS Act. According to the Court, in such situations, prompt step is to be taken by the investigating agency to ensure that the forensic report is received in time before completion of investigation within the prescribed period. But, in the humble view of the Court, any such report is not necessarily to lead to a conclusion that the investigation is incomplete, especially when there are other materials on record filed along with the chargesheet for consideration of the Court taking cognizance of the offences. In fact, taking cognizance of the offences upon receiving a preliminary or a final chargesheet as the case may by a Court is at the nascent stage of the proceedings. In other words, when a Court considers that allegation is of such a nature that further proceeding under the BNSS is necessary, it takes cognizance of the offence prima facie made out. After receipt of any such forensic report tagged with the record shall be examined by the Court at the time of framing of charge to reassure itself that the offences under the NDPS Act have been committed and hence, the accused is liable to prosecution. If on the basis of preliminary chargesheet, cognizance of the offences is taken, which is not barred under law provided the Court is satisfied considering the materials filed therewith, in case the accused is released accepting the plea that the investigation is incomplete for non-submission of the forensic report despite the fact that there are other sufficient materials on record to persuade it to hold that the investigating agency prima facie established the commission of the offences or any situation where the accused is discharged at the time of taking cognizance itself because of non-availability of such a report, it would lead to an anomalous situation or may have a disastrous effect when the forensic report is received later on establishing the claim of the prosecution. A situation may be imagined when the forensic report is received after taking cognizance of the offences when it was not filed along with the chargesheet. If the Court at the time of taking cognizance is of the opinion that it is not able to proceed further only because of non-availability of the forensic report and discharges the accused forthwith, then what would happen if after the expiry of the statutory period, the report is received revealing that the seizure articles are covered under the NDPS Act. Is it that in such a case, the Court would have the jurisdiction to initiate the criminal proceeding against the accused, who is already discharged. A Court having discharged the accused while not taking cognizance of offence is final and cannot be recalled and to avoid such a situation, provisions have been made at each stage of the criminal proceedings and if considering the preliminary or final chargesheet filed along with other materials, an offence is prima facie made out, it is not to be claimed that such investigation is not complete just for non-submission of a forensic report. At times delay in submission of FSL report is beyond the control of the investigating agency and it is undoubtedly, a systemic delay. It is needless to mention that the Chemical Examiner’s report plays a pivotal role in reaching at a conclusion as regards the nature of the contraband substance, whether covered under the NDPS Act and therefore any such evidence in terms of Section 329 BNSS has been put on a distinct pedestal and that speaks volumes of the kind of reliance placed upon it unless challenged.

14. In the present case, no doubt the forensic report has not been filed along with the preliminary chargesheet dated 14th November, 2025. It is not that the other evidence collected during investigation and filed along with the preliminary chargesheet is to be ignored entirely. The chemical examination report is no doubt vital, but for the purpose of considering cognizance of the offences allegedly committed by the accused, non-submission of it is not fatal and therefore, this Court is not inclined to accept the argument advanced by Mr. Dalai, learned counsel that the investigation is incomplete. Even though the question of statutory bail with a plea that investigation is incomplete is pending decision by a Larger Bench, in absence of any prohibition directed by the Apex Court on such determination, this Court is of the considered view that the petitioner is not entitled to default bail. It is not that in the orders (supra) of the Apex Court relied on from the side of the petitioner, it is directed that in all cases, pending decision by a Larger Bench, accused under the NDPS Act is to be forthwith released or should be allowed to go on bail. Such is the view of the Court for the conclusion that the investigation as against the petitioner is complete and cannot be claimed as inchoate just for non-submission of the FSL report received in the meantime and there is also closure of investigation finally with the chargesheet filed in the month of May, 2026 and that such report confirmed that the samples collected from the seizure contraband substance were  found  to  contain  flowering  and  fruiting  tops  of Cannabis plant i.e. Ganja. Even on the question of granting interim bail, the same is pending decision before the Apex Court as made to reveal from the order dated 19th March, 2024 in Hanif Ansari (supra). The chargesheet on record reveals that 1000 Kg of contraband Ganja was being transported in the alleged vehicles at the time when the local police intercepted it. Since commercial quantity of contraband Ganja was recovered and seized and all the materials necessary to file a preliminary chargesheet were collected and with a subjective satisfaction reached at the end of such investigation that the alleged offences have been committed by the petitioner and the co-accused named therein and others, the conclusion of the Court is that he cannot demand release in terms of Section 187(3) BNSS, only because, it was accompanied with FSL report. Having said that, neither a case for default bail nor interim release of the petitioner is made out regard being had to the facts and circumstances of the case and hence, the argument advanced by Mr. Dalei, learned counsel in that regard on any such grounds merits no consideration.

15. Accordingly, it is ordered.

16. In the result, the revision stands dismissed.