Rajasthan High Court - Jodhpur
Pura Ram vs State Of Rajasthan (2024:Rj-Jd:39364) on 21 September, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:39364]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 3rd Bail Application No. 10158/2024
Pura Ram S/o Bhinya Ram Jat, Aged About 32 Years, R/o
Sutharo Ka Bas, Dangiyawas, Police Station Dangiyawas, Dist.
Jodhpur. (At Present Lodged In Dist. Jail, Chittorgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
CONNECTED WITH
S.B. Criminal Miscellaneous Bail Application No. 10860/2024
Rakesh S/o Gopal Meena, Aged About 30 Years, R/o Rajora, Ps
Hathuniya, Dist. Pratapgarh, Raj. (Lodged In Dist. Jail
Chittorgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Abhishek Purohit
Mr. Manish Pitaliya
For Respondent(s) : Mr. Rajesh Bhati, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order 21/09/2024
1. The jurisdiction of this Court has been invoked by way of filing the instant bail applications under Section 439 Cr.P.C. at the instance of accused-petitioners. The requisite details of the matter are tabulated herein below:
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[2024:RJ-JD:39364] (2 of 16) [CRLMB-10158/2024] S.No. Particulars of the Case 1. FIR Number 243/2023
2. Concerned Police Station Nimbahera Sadar
3. District Chittorgarh
4. Offences alleged in the FIR Section 8/15 of the NDPS Act
5. Offences added, if any Section 8/29 of the NDPS Act
6. Date of passing of impugned 18.07.2024 order (SBCRLM 3rd B No.10158/2024)
6.A Date of passing of impugned 02.08.2024 order (SBCRLM 2ndB No.10860/2024)
2. The first and second bail applications of petitioner- Pura Ram came to be dismissed as withdrawn by this Court vide orders dated 22.02.2024 & 21.03.2024 passed in SBCRLMB Nos.13190/2023 & 3568/2024 whereas first bail application of the petitioner Rakesh was dismissed as not pressed by this Court vide order dated 27.02.2024 passed in SBCRLMB No.1373/2024. While dismissing the earlier bail application, this Court afforded liberty to the petitioner to renew their prayer for bail after recording the statement of Investigating Officer. Now, the Investigating Officer has been examined. Hence, the instant bail applications.
3. It is contended on behalf of the accused-petitioners that no case for the alleged offences is made out against them and their incarceration is not warranted. Pura Ram and Rakesh are behind the bars since 05.10.2023 & 20.10.2023. There are no factors at play in the case at hand that may work (Downloaded on 24/09/2024 at 08:56:16 PM) [2024:RJ-JD:39364] (3 of 16) [CRLMB-10158/2024] against grant of bail to the accused-petitioners and they have been made an accused based on conjectures and surmises.
4. Contrary to the submissions of learned counsel for the petitioners, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.
5. I have considered the submissions made by both the parties and have perused the material available on record.
6. Perusal of the record revealing that on 10.07.2023 near the Neemach-Chittorgarh Highway, during nakabandi, SHO, PS Sadar Nimbahera, District Chittorgarh intercepted an Eicher Truck bearing registration No.GJ34 T 2754. During search 135 Kg poppy husk came to be recovered and its driver Jawahar Lal got arrested. At the time of arrest of Jawahar Lal stated nothing with regard to the petitioners after that the investigation was handed over to another police official Adhyatam Gautam. On 11.07.2023 at 12:15 p.m. it is claimed that the principal accused Jawahar Lal made a disclosure to the police inspector to the effect that he can show the place wherefrom he procured the poppy husk without any reference to the petitioners. Again on 12.07.2023, at about 8:00 p.m. he made another disclosure but did not mention the name of the petitioners. Whereafter, again on 12.07.2023 at about 11:30 p.m. he made a disclosure that the recovered contraband was provided to him by one Rakesh S/o Gopal Meena R/o Rajora, P.S. Hathunia, District Pratapgarh and he alleged to have told to (Downloaded on 24/09/2024 at 08:56:16 PM) [2024:RJ-JD:39364] (4 of 16) [CRLMB-10158/2024] take the policeman at the place wherefrom the contraband was taken by him. Strangely, at the time of his 4 th disclosure statement which was recorded on 14.07.2023 at 6:30 p.m. in which the petitioner-Pura Ram has been targeted regarding procurement of the contraband poppy husk. There is substance in the plea raised by Shri Abhishek Purohit, learned counsel representing petitioner that had it been a "voluntary" disclosure, if it is, then the principal accused must have made a mention of the petitioners name in his earlier disclosure statements but that is not the situation here rather in the third disclosure statement the name of petitioner Rakesh was disclosed and whereafter strangely the accusation has been shifted upon the petitioner at the time of recording his 4th disclosure. Learned counsel strangely and fervently argued that if the 3 rd and 4th disclosure statements are considered as a piece of evidence then why not the first and second statements be taken as a piece of evidence. It is also argued that there is no outcome with regard to the first and second information allegedly provided by the principal accused to the police official during custody. It is further argued that until and unless anything is discovered or recovered in pursuance of the information provided under Section 27 of the Evidence Act, the mere confession cannot be taken as a piece of evidence and, therefore, a person cannot be detained indefinitely on that count. Thus, detention of an individual based on such tainted disclosure statement particularly when there are four conflicting (Downloaded on 24/09/2024 at 08:56:16 PM) [2024:RJ-JD:39364] (5 of 16) [CRLMB-10158/2024] disclosures; cannot be made for an indefinite period. Interestingly, except the above disclosure statements there is nothing on record to either corroborate or connect the petitioner with the alleged transportation or recovery of the contraband.
7. If it is 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 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. This court is of the view that at least there must be some corroborations or support to verify the confession made by the accused to the Police Officer while in lockup.
8. It has been held by Hon'ble the Supreme Court in the case of Mohd. Inayatullah Vs. State of Maharastra, reported in AIR 1976 SC 483 that in order to apply Section 27 of the Indian Evidence Act, only the components which are essential or were the cause of the discovery would be considered to be legal evidence. The relevant paragraph of the judgment reads as under:-
"For the application of Section 27 the statement must be split into its components and to separate the admission portion. Only those components or portions which were the (Downloaded on 24/09/2024 at 08:56:16 PM) [2024:RJ-JD:39364] (6 of 16) [CRLMB-10158/2024] immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected."
9. This Court has seriously pondered over the submission made at the Bar. The law in this regard is not no more res- integra that Section 27 of the Evidence Act is an exception to the Sections 24, 25 & 26 of the Evidence Act and the exceptional circumstances limits it's applicability to the extent of the discovery if any, made in pursuance of the information furnished under Section 27 of the Evidence Act. It is not in dispute that in three disclosure statements of the principal accused, the name of the petitioners did not find place and they have been booked as an accused on the strength of the 3rd and 4th memorandum of statements. The disclosure statement of the principal accused to a police official while in police custody whether the same was voluntary or truthful is a serious question of law and at present this Court feels that long detention of an accused cannot be made, as the same is based upon the above typed quality of evidence. Unless the incriminating article is recovered, the statement indicating involvement of the petitioners is not sufficient enough to allow his further incarceration. Only discovery of an object; the place from where it is produced and so also the knowledge of the accused regarding the place would be admissible in evidence, however, in the case at hand, the contraband and the place from which it was recovered or procured was already in knowledge of the police officers. The (Downloaded on 24/09/2024 at 08:56:16 PM) [2024:RJ-JD:39364] (7 of 16) [CRLMB-10158/2024] submission has a substance that why the 3 rd and 4th disclosure statements be taken as a piece of evidence and not the second or fist disclosure statement because both were made by the principal accused to the same police officer. This Court is cognizant of the provisions contained in Section 37 of the NDPS Act but considering the submissions made by learned counsel for the accused-petitioner regarding him being made an accused only on the basis of statement of co-accused.
10. Simply mentioning in the charge sheet that offence under Section 29 of the NDPS Act is made out against the petitioner is not sufficient enough to allow his incarceration until and unless any material is attached with the charge-sheet showing involvement/participation of the petitioner. For ready reference Section 29 of the NDPS Act is being reproduced as under:-
29. Punishment for abetment and criminal conspiracy.--
(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the (Downloaded on 24/09/2024 at 08:56:16 PM) [2024:RJ-JD:39364] (8 of 16) [CRLMB-10158/2024] criminal conspiracy to the commission of any act in a place without and beyond India which-
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.
A plain reading of the provision above makes it clear that if a person abets the other to commit the offence under the NDPS Act, or a person who hatches a conspiracy with other persons to commit an offence punishable under the NDPS Act, can be charged for the offence under Section 29 of the NDPS Act and it does not matter whether the offence was committed or not in consequence of such abetment or in pursuance of the criminal conspiracy hatched by them.
11. Abetment is defined under Section 107 of the IPC for the ready reference, the same is being reproduced hereunder:-
Abetment of a thing.
A person abets the doing of a thing, who-- First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing.(Downloaded on 24/09/2024 at 08:56:16 PM)
[2024:RJ-JD:39364] (9 of 16) [CRLMB-10158/2024] From the above, it is revealing that a person abets the fact of doing of a thing if he instigate someone to do it or a person abates the doing of a thing, if he conspire with others to do it.
If an act or illegal omission occurs in furtherance of that conspiracy then it can be said that an offence of abetment was committed. The other aspect of the provision is that if a person, while abetting the other intentionally aids or assists in doing the thing by any of his act or illegal omission, he is an accused of abetment.
Criminal Conspiracy is explained under Section 120-B of the IPC, which is as under:-
120B. Punishment of criminal conspiracy.-- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] To invoke the provision of Criminal conspiracy there has to be an agreement of mind between two or more people to commit an illegal act or to commit an act though not illegal but done by illegal means and the parties have a common intention to commit the act.(Downloaded on 24/09/2024 at 08:56:16 PM)
[2024:RJ-JD:39364] (10 of 16) [CRLMB-10158/2024]
12. What is emanating from the provision of abetment or conspiracy that there has to be an act of abetment on behalf of the accused or he must be in agreement with the other persons to do an illegal act. After minutely going through the entire charge-sheet, not an iota of evidence or tissue of the material is there to show or suggest that either there had been a meeting between the petitioner and the principal accused or there was any exchange of calls between them or they were in any manner connected with each other or even to say that anything was done by the petitioner which somehow added/assisted/facilitated/or in any manner cooperated with the principal accused. No meeting, no CDR, no text, no messages, no recording, no piece of paper, no letter, no evidence regarding presence of both, the principal accused and the petitioner at a common place is on record.
13. True, it is that the appreciation rather meticulous appreciation of evidence is not to be done at the inception of the trial but at the same time, it cannot be forgotten that here is an issue of releasing the petitioners on bail who have been detained from around one year for accusation of committing an offence in a particular provision, at least, there must be something to either corroborate/bolster, to support or verify the saying of the police officer that the petitioner either abetted or was in conspiracy with the principal accused. Had it been the case that soon after or at the time of recovery of the contraband; the principal accused made a disclosure regarding involvement/participation of the accused, if the same was (Downloaded on 24/09/2024 at 08:56:16 PM) [2024:RJ-JD:39364] (11 of 16) [CRLMB-10158/2024] disclosed by him, then the fact situation may be different. But strangely, here in this case, nowhere the principal accused from whom the contraband got recovered ever named the petitioner. What would be the basis for the trial of this accused? Whether only the assertion of the police officer that petitioner is guilty of the charge without single piece of proof; Whether the same as mentioned above, would be sufficient enough to keep a person detained for an indefinite period; Whether in the circumstances mentioned above, the embargo contained under Section 37 of the NDPS Act would come in the way of granting bail; Whether at this stage of judicial proceeding it would be appropriate to declare that he is not guilty of the offence. No, never. It is neither expected nor desirable from a High Court, since doing so, would mean culmination of the trial at its infancy.
14. The present petitioner had been made accused in this case on the basis of confessional statement of the principal-accused and to connect the present petitioner to the alleged recovery. Efforts have also been made to connect the petitioner with the principal-accused, however, no connecting evidence has been produced so as to add direct nexus between the petitioner and principal accused from whom the contraband was recovered. In the case at hand, nothing has been recovered from the present petitioner and no other legally admissible evidence that could connect the petitioners to the crime or to the other co-accused persons for that matter has come to the fore, thus, the disclosure statement of the co-accused in (Downloaded on 24/09/2024 at 08:56:16 PM) [2024:RJ-JD:39364] (12 of 16) [CRLMB-10158/2024] police custody on the basis of which the present petitioners have been made an accused in this case remains just illusory knowledge and does not become a fact proved as no fact has been discovered in consequence of the information disclosed by the co-accused, thus, it cannot be said with certainty that the accused can be roped in for commission of offence under Section 29 of the NDPS Act.
15. Moving on to the impediments contained under Section 37 of the NDPS Act, it is considered relevant to refer to the recent ruling passed by Hon'ble the Supreme Court in Mohd Muslim @ Hussain V. State (NCT OF DELHI) Vs. State (NCT of Delhi) passed by Hon'ble the Supreme Court in Special Leave Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023, wherein while discussing the parameters of Section 37 of the NDPS Act, it was held that the provision cannot be construed in a manner that would render the grant of bail impossible. The accused-appellant in the aforementioned case was directed to be enlarged on bail looking to the long period of incarceration. The paragraphs of Mohd. Muslim @ Hussain (supra) relevant to the present matter are reproduced below:
"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate (Downloaded on 24/09/2024 at 08:56:16 PM) [2024:RJ-JD:39364] (13 of 16) [CRLMB-10158/2024] of the general law on bails (Sections 436, 1 Special Leave Petition (CRL.) NO(S). 915 of 2023, decided on 28.03.2023. 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws - be balanced against the public interest.
19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court (Downloaded on 24/09/2024 at 08:56:16 PM) [2024:RJ-JD:39364] (14 of 16) [CRLMB-10158/2024] should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act."
(Emphasis Supplied)
16. In Rabi Prakash Vs. State of Odisha passed in Special leave to Appeal (Crl.) No.(s) 4169/2023, Hon'ble the Apex Court has again passed an order dated 13th July, 2023 dealing this issue and has held that the provisional liberty(bail) overrides the prescribed impediment in the statute under Section 37 of the NDPS Act as liberty directly hits one of the most precious fundamental rights envisaged in the Constitution, that is, the right to life and personal liberty contained in Article 21.
17. At the stage of hearing of a bail plea pending trial, although this Court is not supposed to make any definite opinion or observation with regard to the discrepancy and legal defect appearing in the case of prosecution as the same may put a serious dent on the State's case yet at the same time, this Court can not shut its eye towards the non-compliance of the (Downloaded on 24/09/2024 at 08:56:16 PM) [2024:RJ-JD:39364] (15 of 16) [CRLMB-10158/2024] mandatory provision, around a year of incarceration pending trial, failure of compliance with the procedure of sampling and seizure and the serious issue of competence of seizure officer. In the case of Mohd. Muslim @ Hussain (Supra) it has been propounded that at the stage of hearing a bail application under Section 439 Cr.P.C., although it is not possible to make a definite opinion that they are not guilty of the alleged crime but for the limited purpose for the justifiable disposal of the bail applications, a tentative opinion can be formed that the material brought on record is not sufficient enough to attract the embargo contained under Section 37 of the NDPS Act. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody, this court feels that the accused are not supposed to establish a case in support of his innocence rather his detention is required to be justified at the instance of the prosecution, therefore, this court went deep into the facts of the case and the manner in which the entire proceedings have been undertaken. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioner.
18. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused- petitioner, named above, shall be enlarged on bail provided (Downloaded on 24/09/2024 at 08:56:16 PM) [2024:RJ-JD:39364] (16 of 16) [CRLMB-10158/2024] 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-Mamta/-
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