Goverdhan Ram vs State
2022 Latest Caselaw 6560 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 872/2022

Goverdhan Ram Nephew/o Sh. Pancha Ram, Aged About 25 Years, Bhilo Ka Vas, Setarawa, Dist. Jodhpur. (Presently Lodged In Distt. Jail, Balotra).

----Petitioner Versus State, Through Pp

----Respondent Connected With S.B. Criminal Miscellaneous Bail Application No. 4360/2022

1. Rawal Ram S/o Budharam, Aged About 27 Years, R/o Suryoday Nagar, Solankiya Tala, Tehsil Shergarh, District Jodhpur. (At Present Lodged In Central Jail, Jodhpur)

2. Suresh S/o Telaram, Aged About 23 Years, R/o Ranjeet Nagar Raysar, Tehsil Sergarh, District Jodhpur. (At Present Lodged In Central Jail, Jodhpur)

----Petitioners Versus State Of Rajasthan, Through Pp

----Respondent S.B. Criminal Miscellaneous Bail Application No. 5395/2022

1. Bhoma Ram S/o Mohan Ram, Aged About 27 Years, R/o Khudiyala Balesar / Shergarh Ps Dist. Jodhpur (Lodged In Sub Jail Balotra)

2. Kailash S/o Chutara Ram, Aged About 29 Years, R/o Khudiyala Balesar / Shergarh Ps Dist. Jodhpur (Lodged In Sub Jail Balotra)

----Petitioners Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr Bharat Singh Rathore, Mr Vinod Kumar Sharma, Mr B.R. Bishnoi For Respondent(s) : Mr Arun Kumar Public Prosecutor

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HON'BLE MR. JUSTICE FARJAND ALI

Judgment / Order

06/05/2022

These applications for bail under Section 439 CrPC have been

filed by petitioners who were arrested in connection with FIR

No.262/2021 registered at Police Station Pachpadra, District

District Barmer, for offence under Sections 457, 380, 120B IPC

read with Section 8/15 of the NDPS Act and Section 3 of PDPP Act.

Since all the three bail applications are emanating from the

same FIR (No.62/2021), with the consent of the parties, they are

being decided by this common order.

The matter has a chequered history. In order to unfold layers

of the present case, this Court is required to date back to two

other cases, in FIR No.106/2019 and 177/2019 lodged on

04.06.2019 and 23.08.2019 respectively at Pachpadra Police

Station, both for offence under Section 8/15 of the NDPS Act. In

said cases, 10 quintal of Poppy Husk was recovered cumulatively

and was kept in the storage house of the Pachpadra Police Station.

Accordingly, the said contraband was lying in the storage house

since it was recovered.

Eventually, the charge of the storage house of the Police

Station Pachpadra was handed over by one Head Constable to the

other Head Constable. While taking the charge, the taking over

Head Constable in the course of checking the stored items, found

that the bags containing 10 quintal of Poppy Husk, recovered in

the aforesaid cases, were missing from the storage house. On the

same day i.e. on 23.04.2021, this finding of theft from the storage

house was mentioned as report No.20 in the Roznamcha of the

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Police Station Pachpadra, however, no separate case was

registered in this regard.

Following this incident, the S.P. Barmer initiated an inquiry,

wherein an inquiry report dated 01.09.2021 was made by the

Deputy S.P. Balotra, as per which it came to be known that the

contraband was lying in the storage house of the outpost

Pachpadra Police Station, some unknown persons have broken the

backside window of the said room and have stolen the property

containing contraband weighing 10 quintal.

On the basis of aforesaid inquiry report, an FIR bearing

No.262/2021 dated 11.09.2021 came to be lodged under Sections

457, 380 IPC. Interestingly, the investigation in the said FIR was

commenced only when one fine day i.e. on 24.09.2021, the S.P.

Barmer came across a Press Note on WhatsApp. As per said Press

Note, he came to realize that another offence of theft has

occurred, which came to be lodged at the Police Station Shergarh

wherein the delinquent, namely Shiv Prakash, is the accused

person, who was in custody in connection with stealing of

electrical items. This incident said to have occurred in the month

of January 2021 and the delinquent had allegedly confessed

before the investigating agency of the Police Station Shergarh

about committing the offence of theft of Poppy Husk from

Pachpadra outpost and that he has broken window of the Police

chowki Pachpadra for 7-8 times.

There is nothing new in this aspect of which this Court takes

special note that maximum offences of theft are occurred by

trespassing without which an offence of theft can not be

committed, however, the investigating agency hurriedly detained

the delinquent Shiv Prakash and implicated him in the present

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matter. During the interrogation, the investigating agency has

claimed that the delinquent Shiv Prakash has confessed his crime

and gave information that he along with 10 other persons had

stolen 10 quintal contraband from the storage house of the Police

Station Pachpadra. It is noteworthy that the confession was made

by him while in Police custody.

On the basis of his confession taken in Police custody and the

information received under Section 27 of the Evidence Act, the

investigating agency has filed a charge-sheet for offences under

Sections 457, 380, 120B IPC, Section 3 of the PDPP Act and

Sections 8/15, 29 of the NDPS Act, against 10 accused persons

including Shiv Prakash and the present petitioners for offence

under Section 411 IPC and Section 8/15, 29 of the NDPS Act. It

would be worthwhile to mention here that the bags, packets,

wrapper or any seal-chit paper has not been recovered so as to

show nexus that the above mentioned 7 kilograms 800 grams

Poppy Husk was the same contraband which was recovered in the

year 2019 in aforesaid NDPS Case.

As per the said charge-sheet, the investigating agency has

allegedly recovered 3 Kilogram 200 grams of Poppy Husk from

accused Raval Ram and 4 Kilogram 600 gram of Poppy Husk from

accused Bhoma Ram, on 20.12.2021, only on account that the

said contraband was in their possession without having any

license. At the time of interrogation, the accused persons have

allegedly confessed that the rest of the contraband, apart from the

recovered contraband of 3 Kilo 200 grams and 4 kilo 600 grams,

had been sold.

The investigating agency did not even bother to find out as

to whom the balance contraband had been sold, or where and in

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what manner the same has been disposed. Not only that, no effort

has been made by the investigating agency to show that the

contraband stolen from the storage house of Police Station

Pachpadra and the contraband recovered from the accused

persons Bhoma Ram and Rawal Ram, do match.

In its repeated attempts of investigation, handicapped with

incongruities, the investigating agency did not stop here and

attained the audacity to even make the news article as well the

said Press Note a part of the Case Diary and no other evidence

has been produced to substantiate the connection of the accused

Shiv Prakash with the theft of 10 quintal contraband except the

Press Note, which deals with the offence of theft lodged at the

Police Station Shergarh.

This Court is of the view that the investigating agency has

tried hard to connect the offender of theft lodged at Shergarh

Police Station and the theft of contraband lodged at the Pachpadra

Police Station, on the basis of two aspects; firstly, the manner in

which both the thefts have occurred i.e. the presumption that

the theft was committed by breaking the window and secondly,

the confession made by delinquent Shiv Prakash about his

involvement in the theft lodged at Shergarh Police Station.

This Court would like to deal with both the aspects on the

basis of which the investigating agency has relied upon i.e. the

presumption of connecting the offender of theft with the

possession of stolen goods from the accused persons and the

confession in Police custody. Quite fascinatingly, the investigating

agency, while making a presumption against the accused Rawal

Ram and Bhoma Ram seems to have miserably forgotten that the

'presumption' as per Section 114 of the Indian Evidence Act, while

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connecting the offender of theft with the possession of stolen

goods, is available and can be applied only to the extent that

when the offender is found in possession of the stolen goods soon

after the theft, unless the contrary is proved.

However, in the present case, the commission of theft of 10

quintal contraband was found out on 23.04.2021 and the Poppy

Husk in below commercial quantity i.e. 3 kilo 200 grams and 4 kilo

600 grams was recovered, separately, from Bhoma Ram and

Rawal Ram, on 20.12.2021. It is significant to mention that the

commission of the theft at Pachpadra Police Station was found out

on 23.04.2021, meaning thereby that it cannot still be told as to

when did the actual commission of theft occur. Even assuming that

the theft of 10 quintal contraband has occurred on 23.04.2021, at

least this much is clear that there has been a gap of

approximately 8 months between the commission of theft and the

recovery of the stolen contraband from possession of the accused

persons Bhoma Ram and Rawal Ram. It is case of the prosecution

that the theft was committed on 7-8 different occasions.

Therefore, in the absence of any other evidence, direct,

indirect, circumstantial or even documentary, the 'presumption' as

has been discussed above, which has been one of the basis to

implicate the accused persons, can not be made available to the

investigating agency as the accused persons could have been

simply connected with the theft of contraband only if they were

found in possession of the stolen goods soon after the theft.

As regard confession in judicial custody is concerned, it is a

well settled law {Ram Singh Vs Central Bureau of Narcotics:

AIR 2011 SC 2490} that Section 25 of the Indian Evidence Act

makes a confessional statement of the accused before Police

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officers inadmissible in evidence, which can not be brought on

record by prosecution to obtain conviction. Further, statements

made in policy custody are considered to be unreliable unless they

have been subjected to cross examination or judicial scrutiny

{Sehr Vs State of Karnataka: AIR 2010 SC 1974}. Moreover,

the confession made while in custody is not to be proved against

the accused as the provisions of Section 25 and 26 of Indian

Evidence Act do not permit it unless it is made before a Magistrate

{Kamal Kishore Vs State (Delhi Administration): (1977) 2

Crimes 169 (Del)}.

On this facet, this Court would like to refer to what Stephen

had to say on page 442 of the book authored by him titled 'History

of Criminal Law' and the same has been quoted by Vinod

Chandran, J. in Thadiyantevedia Nazeer & Anr Vs State of

Kerala: Crl. Appeal Nos.1699 & 1914 of 2011, which follows:

"If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of laborious investigation and prolonged examination of other men, materials and documents? It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law "to sit comfortably in the shade rubbing red pepper into a poor devil's eyes rather than go about in the sun hunting up evidence."

It has been further held in State of Bombay Vs Kathu Kalu

Oghad: (1962) 3 SCR 10 that- "confession may have an element

of truth in it but it fails to persuade the Judges, in travelling the

distance between 'may be true' and 'must be true' the whole of

which distance, as has been held in Sarwan Singh vs. State of

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Punjab: 1957 SCR 953, must be covered by 'legal, reliable and

unimpeachable evidence'.

Looking at the facts and circumstances evolved while

conducting this entire episode of so-called thorough and diligent

exercise in the name of investigation, as has been dramatically

performed by the investigating agency, the same commands

deprecation, strong condemnation and stark aversion from this

Court. Further, this Court raises questions on each of the action

which has been taken by the investigating agency without

application of mind and the same can not be said to have acted

within four corners of the law.

It is relevant to mention here that Section 52 of the NDPS

Act deals with the procedure for the preparation of an inventory of

the seized material by the competent officer, certification of the

correctness of the inventory by the Magistrate, drawing of samples

of such seized material in the presence of the Magistrate, and

taking of photographs in the presence of such Magistrate of the

substance seized and certifying such photographs to be true. The

questions, being majorly governed by Section 52-A of the NDPS

Act, are, as follows:

i) Why an inventory to store such huge quantity of contraband was not prepared as has been mandated in view of Section 52-A of NDPS Act?

ii) Why an exclusive storage of seized materials, equipped with vaults and double locking system, was not made, in view of Standing Order No.1 of 1989, to ensure proper security against theft, pilferage or replacement of the seized drugs?

iii) Whether the bags carrying 10 quintal of Poppy Husk contained description, quality, quantity, mode of packing,

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marks, numbers of such identifying particulars (seal and paper-chit) or the packing in which they were packed?

iv) Whether an effort was made by the prosecution as regard the relevancy of particulars as mentioned above with the contraband articles recovered from accused persons Bhoma Ram and Rawal Ram?

v) Whether a sample of stolen contraband of 10 quintal was taken by the concerned Police Officer at the time of effecting recovery? If yes, whether the said sample was made to have matched with each of the portion of recovered contraband i.e. 3 kilo 200 grams and 4 kilo 600 grams?

vi) Whether any testimony was taken by any spot witnesses while effecting recovery from the accused persons?

vii) Whether the aforementioned seized contraband articles (in below commercial quantity) were produced before the concerned Magistrate/Special Judge before jumping to the conclusion that the same matched with the contraband that was stolen?

viii) Why only 7 kilo 800 grams of contraband was seized and where is the rest of the contraband and why there has been no plausible explanation given by the investigating agency to that effect?

ix) Why not a single step was taken by investigating agency in pursuance of finding out the said rest of the contraband articles and the manner in which it could have been disposed, destructed, distributed/sold?

x) Most importantly, how did the investigating agency arrive at the aspect that the portion of contraband consisting of 7 kilo 800 grams was taken from the contraband stolen of 10 quintal, unless any marked container is recovered?

xi) The loose contraband in below commercial quantity is any way available in the market then on what basis can it be assumed that the portion of said contraband could be from the lot of the stolen contraband of 10 quintal?

xii) The discovery of theft was made on 23.04.2021 and the FIR was lodged 11.09.2021, why delay? What were the steps taken between 23.04.2021 and 11.09.2021?

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xiii) Whether or not the missing of 10 kg Poppy Husk would put adverse effect on those NDPS cases?

Unfortunately, the answers of the above mentioned questions

could not be found in the charge-sheet and in the statements

made by the investigating agency. In this scenario, this Court

observes that since the present matter is of a serious economic

offence, abundant caution ought to have been taken by the

prosecution in establishing direct nexus between the recovered

contraband of 7 kilo 800 grams and the stolen contraband of 10

quintal. In the absence of same, this Court expresses its anguish

over the lackadaisical approach in dealing with the present case.

Be that as it may, for the present bail applications, the

material placed before this Court, if taken in its entirety, can

substantiate the allegation of recovery of 3 kilo 200 grams Poppy

Husk from accused Rawal Ram and 4 kilo 600 grams Poppy Husk

from the accused Bhoma Ram, both from different places. Even if

the cumulative weight is considered, it is well below the

commercial quantity, therefore, the embargo contained in Section

37 of the NDPS Act would not attract.

Since the charge-sheet has been filed, therefore, looking to

the totality of the facts and circumstances of the case, at this

stage I do not deem it appropriate to allow further incarceration of

the accused applicants. Therefore, the aforesaid three bail

applications under Sec.439 CrPC are allowed. It is ordered that

the aforesaid accused-petitioners- 1) Goverdhan Ram Nephew/

o Sh. Pancha Ram, 2) Rawal Ram S/o Budharam, 3) Suresh

S/o Telaram, 4) Bhoma Ram S/o Mohan Ram and 5)

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Kailash S/o Chutara Ram, arrested in connection with FIR

No.62/2021 registered at Police Station Pachpadra, District

Barmer shall be released on bail, if not wanted in any other case,

provided each of them furnishes a personal bond of Rs.50,000/-

(rupees Fifty Thousand) and two sureties of Rs.25,000/- (rupees

Twenty Five Thousand) each, to the satisfaction of learned trial

court, for their appearance before that court on each & every date

of hearing and whenever called upon to do so till completion of the

trial.

It is made clear in unambiguous and lucid terms that the

observations made herein about niceties of the matter are limited

and are sine qua non to adjudicate the bail plea and the same

shall not influence the trial judge.

Before parting, this Court is constrained to give direction to

the Director General of Police, Rajasthan, Jaipur to look into the

matter and do all the needful as per his wisdom.

(FARJAND ALI),J 9, 10 & 11-MMA/-

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