[2023/RJJD/006845] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 1319/2023 Wahid Khan @ Bhayulal S/o Shri Babar Khan, Aged About 38 Years, R/o Vill. Surjane Postal Titrod Ps Sitamau Dist. Mandsore M.p. (At Present Lodged In Central Jail Jodhpur)
----Petitioner Versus Union Of India, Through NCB
----Respondent For Petitioner(s) : Mrs. Rukhshana Bai, Wife of the petitioner. Present in person.
For Respondent(s) : Mr. M.R. Pareek, SPP
HON'BLE MR. JUSTICE FARJAND ALI
Order
17/03/2023
Lawyers are abstaining from appearing before the Court. The instant bail application has been filed by the petitioner under Section 439 Cr.P.C against the order impugned passed by learned court below in connection with FIR No. VIII(IO)16NCB/JZU/2021, registered at Police Station NCB Jodhpur, for the offences under Sections 8/21 and 29 of NDPS Act.
The wife of the petitioner is present in person before this court and she submits that there is no evidence even for the namesake which can directly or indirectly show any nexus between the petitioner and the allegedly recovered contraband.
After rejection of the first bail application of the petitioner by this court, the other co-accused persons namely Shyamlal, Yakub Khan and Arif Khan have already been released on bail by the coordinate bench of this court vide order dated 24.01.2023 and (Downloaded on 17/03/2023 at 09:01:54 PM) [2023/RJJD/006845] (2 of 4) [CRLMB-1319/2023] the case of the petitioner is not distinguishable to that of the other co-accused. The alleged recovery has not been made from his exclusive and conscious possession.
Per contra, learned Public Prosecutor opposes the bail applications on the ground that the recovered contraband weighed 500 grams in total and that is way above the commercial quantity demarcated for smack.
Heard and perused the material available on record. The alleged disclosure statement was said to have been made by the co-accused, who stated to the officers of NCB regarding involvement of the petitioner, but except his confession, nothing has been recovered or discovered, therefore, the contents of the said information cannot be taken into evidence as the same is beyond the arena of Section 27 of the Evidence Act. During the investigation, the agency did not came across any evidence, direct or indirect, to show the connection of the present accused- petitioner with the principal accused. The statement recorded under section 67 of NDPS Act does not reveal or disclose any new thing except the confession of committing offence. Therefore in view of the judgment passed by Hon'ble the Supreme Court in the case of Tofan Singh Vs. State of Tamil Nadu reported in AIR 2020 SC 5592 the same is not admissible in evidence. To book and try booking an accused for the accusation of the offence committed under Section 29 of the NDPS Act, there must be some corroborative evidence. Besides the aforesaid confessional statement, nothing is there on record to corroborate or substantiate or verify the alleged charges. (Downloaded on 17/03/2023 at 09:01:54 PM) [2023/RJJD/006845] (3 of 4) [CRLMB-1319/2023] Coming to the question of the ban contained in Section 37 of NDPS Act, it is mandated that the fulfillment of twin conditions of this section takes place. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such an offence. As far as the contemplation of the first condition is concerned, ample and reasonable opportunity has been sufficiently afforded to the prosecution to protest the bail plea. For the second condition the submission seems to be worth considering that if there's an information under Section 27 of the Evidence Act, something is required to be recovered or discovered in pursuance of the information supplied under Section 27 of the Evidence Act, which distinctly relates to the commission of the crime. It is the admitted case of the prosecution that in pursuance of the information furnished under Section 27 of the Evidence Act regarding the culpability of the petitioner, nothing new was disclosed, recovered or discovered except his confession made to the NCB officer while in custody.
There is no contact in between the petitioner and the co- accused from whom the recovery has been effected as per the material available on record. Though there is contact between the petitioner and two other co-accused persons but no recovery has been effected at their instance, thus, a safe inference can be drawn that there is no direct nexus between the petitioner and the recovery effected at the instance of other co-accused. (Downloaded on 17/03/2023 at 09:01:54 PM)
[2023/RJJD/006845] (4 of 4) [CRLMB-1319/2023] Indisputably, no call recording, text or chat of the petitioner with the principal accused or the other co-accused is available on record. Thus, keeping in view the law as laid down by Hon'ble the Supreme Court of India in the case of Tofan Singh (Supra) and the fact that similarly situated co-accused persons have been enlarged on bail and this court deems it just and proper to enlarge the petitioners on bail.
It is to be made clear, in unambiguous terms, that the effect of this order is limited to the justifiable disposal of the present bail application and shall not influence the learned trial judge in reaching a conclusion at the culmination of the trial.
Accordingly, the 2nd bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner Wahid Khan @ Bhayulal S/o Shri Babar Khan, shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.
(FARJAND ALI),J 25-Divya/-
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