Rajasthan High Court - Jodhpur

Govind @ Gumna Ram vs State Of Rajasthan on 23 August, 2023

Bench: Farjand Ali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 10712/2022

Sanjay @ Sri Ram S/o Varinga Ram, Aged About 35 Years, Nai Bond, Gudamalani P.s., Dist. Barmer. (Lodged In Sub Jail, Bhinmal).

                                                                  ----Petitioner
                                   Versus
State Of Rajasthan, Through Pp
                                                                ----Respondent


For Petitioner(s)         :    Mr. V.R. Bishnoi
For Respondent(s)         :    Mr. S.K. Bhati, PP




             HON'BLE MR. JUSTICE FARJAND ALI

                                    Order

23/08/2023

1. The instant 2nd application for bail has been filed under

Section 439 Cr.P.C. on behalf of the petitioner Sanjay @ Sri Ram,

who is in custody in relation to F.I.R. No.60/2020, Police Station

Bagoda, District Jalore, for the offence under Sections 8/15 & 29

of the NDPS Act. The first bail application of the petitioner came to

be rejected by the Coordinate Bench of this Court vide order dated

07.07.2021 (S.B. Criminal Misc. Bail Application No.7978/2021).

Hence, the present bail application.

2. A perusal of the record revealing that on 29.05.2020, the

police team of Police Station Bagoda, District Jalore intercepted a

vehicle Scorpio and apprehended accused Joga Ram and Ladu

Ram Bishnoi. It is alleged that certain quantity of contraband

poppy husk came to be recovered from the said vehicle. It is

further alleged that during the course of investigation, the

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aforementioned accused persons made a disclosure statement to

the Investigating Officer regarding involvement of the petitioner.

The said information has been written down as an information

under Section 27 of the Indian Evidence Act. It is notable that the

name of the petitioner has not been disclosed by the aforesaid

accused spontaneously and instantaneously at the spot and rather

after few days. Admittedly, while making aforesaid memo, the

accused was in police custody and the disclosure was made to a

police officer. It is also revealing that nothing new has been

recovered or discovered except the confession of principal accused

involving himself and the petitioner. The admissibility of the

aforesaid memo would be a debatable question and at this stage

of the trial, this Court would like to refrain from passing any

comment/observation over the legal situation, since doing so may

put a serious dent on the case of the prosecution and may

influence the course of the trial.

3. Even the learned Public Prosecutor fairly concedes the fact

that except the above memo, there is no evidence even for the

name sake from which petitioner can be linked or connected with

the alleged crime. It is argued that who will come in the witness

box during trial to establish the above fact for which the further

incarceration of the petitioner can be continued and of course the

question is appealable. It is stated by the Public Prosecutor that in

all pending cases which are filed against the accused, are under

trial and the petitioner is attending the course of trial.

4. It has come on record that the petitioner has criminal

antecedents and several cases have been lodged against him

though in none of the cases, he was convicted. Although, mere

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lodging of the number of criminal cases would not be sufficient

and it is not essential to see whether conviction was made or not

because the standard of proof at that stage would be proving the

case beyond reasonable doubt and may be, in cases, the accused

may be acquitted on account of paucity of evidence or on account

that the prosecution failed to prove its case beyond reasonable

doubt; which is mandate of law.

5. I have pondered over the above issue also but at the same

time, it is felt that at least there must be some legally admissible

evidence so as to justify the arrest of an accused or regularise the

long detention of accused in custody. Indeed, it is imperative

upon the prosecution to discharge even the initial burden so as to

justify the detention and prolong incarceration of an individual.

The petitioner is a permanent resident of District Barmer and no

apprehension has been shown by the prosecution that he will flee

from justice or would not be readily available for trial. The

witnesses are police officers and there is no anticipation that if the

accused would be released, he may hamper the prosecution

evidence. The similarly situated co-accused of this case has

already been enlarged on bail.

6. In this view of the matter, it is appearing that except the

information furnished under Section 27 of the Evidence Act by the

accused-persons to police officer during their custody with police,

there is nothing on record which could connect the petitioner

directly or indirectly with the alleged crime. The evidentiary value

of the aforesaid statement did not require to be adjudicated at this

stage and even this court itself feels to refrain from passing any

observation in this regard as the same may put an adverse impact

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on the future course of the trial court however tentatively, for the

purpose of satisfaction of the embargo contained under Section

37of the NDPS Act it is deemed appropriate to accede to the

prayer of bail as he is in custody since around three years.

7. In a recent judgment passed by the Hon'ble Supreme Court

in the case titled as Mohd Muslim @ Hussain V. State (NCT OF

DELHI) the embargo of Section 37 of the NDPS Act has been

dealt with. The paragraph of the afore-said judgment relevant to

the present matter is 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 of the general law on bails (Sections 436, 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

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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 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."

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8. Prima facie the submission made by the learned counsel for

the applicant-petitioner that the applicant is not guilty of offence

and there is a serious doubt regarding genuineness of the

information received under Section 27 of the Evidence Act seems

to be worth considering and, in my view, the fetter contained

under Section 37 of NDPS Act shall not come in way of this court

while entertaining the bail plea.

9. Considering the arguments advanced by the counsel for the

parties and looking to the overall facts and circumstances of the

case, it is deem just and proper to enlarge the accused-petitioner

on bail.