Rajasthan High Court - Jodhpur

Bajrang Lal vs State Of Rajasthan ... on 25 August, 2023

Bench: Manoj Kumar Garg

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 9567/2023

Bajrang Lal S/o Madan Lal, Aged About 22 Years, R/o Vill. Jd Magra Ps Panchu Tehsil Nokha Dist. Bikaner Raj. (At Present Lodged In Dist. Jail Hanumangarh)

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

----Respondent Connected With S.B. Criminal Miscellaneous Bail Application No. 8967/2023 Subhash S/o Bhadar Ram, Aged About 29 Years, R/o 16-A Tehsil And Ps Anoopgarh Dist. Sri Ganganagar Presently Residing At 3 Pgm Ps Anoopgarh Dist. Sri Ganganagar Raj. (At Present Lodged At Central Jail Bikaner)

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

----Respondent

For Petitioner(s) : Mr. Vinod Kumar Sharma Mr. Baltej Singh For Respondent(s) : Mr. Mahipal Singh Bishnoi, P.P.

HON'BLE MR. JUSTICE FARJAND ALI

Order

25/08/2023

1. The jurisdiction of this court has been invoked by way of

filing the instant applications under Section 439 CrPC at the

instance of accused-petitioners. The requisite details of the matter

are tabulated herein below:

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S.No.                          Particulars of the Case
     1.    FIR Number                                  379/2022
     2.    Concerned Police Station                    Hanumangarh Sadar
     3.    District                                    Hanumangarh
     4.    Offences alleged in the FIR                 Sections 8, 15, 25 & 29 of
                                                       the NDPS Act
     5.    Offences added, if any                       -

6. Date of passing of impugned 01.06.2023 order (SBCRLMB No. 9567/2023)

7. Date of passing of impugned 11.07.2023 order (SBCRLMB No. 8967/2023)

2. The concise facts of the case as alleged in the FIR are that a

car bearing registration No. RJ13 UA 7768 was stopped around

250 meters away from the nakabandi on 14.12.2022 at about

09:00 p.m. near Dabli Rathan. Two unidentified persons were seen

running away from the car which was parked on the side of the

road. Upon search, eight bags of poppy husk were found in the car

weighing 152 Kilograms.

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. There are no factors at play in the

case at hand that may work against grant of bail to the accused-

petitioner and he has been made an accused based on conjectures

and surmises. It is the admitted case of the prosecution that

neither the petitioner was found present at the crime scene nor

any incriminating material or contraband was recovered from his

possession. There are no factors at play in the case at hand that

may work against grant of bail to the accused-petitioners and they

have been made accused based on conjectures and surmises. The

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alleged disclosure statement was said to have been made by the

co-accused Dhramveer in police custody, who stated to the police

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.

4. Contrary to the submissions of learned counsel for the

petitioners, learned Public Prosecutor opposes the bail applications

and submits that the present case is not fit for enlargement of

accused on bail.

5. Have considered the submissions made by both the parties

and have perused the material available on record. It is an

admitted case of the prosecution that when the search and seizure

was conducted no one was present in or near the car from which

the recovery has been affected. The present petitioner- Subhash

has been made accused in this case on the basis of disclosure

statement of co-accused Dhramveer made under Section 27 of

Indian Evidence Act wherein it was stated that Subhash and he

fled away from the scene after spotting the police from a distance.

The other petitioner-Bajrang has also been made accused in this

case on the basis of statement of co-accused Dhramveer made

under Section 27 of Indian Evidence Act wherein it was stated that

the contraband was procured from Bajrang by him and Subhash.

6. 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

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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.

7. 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 immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected."

8. It can be manifested from a simple reading of Section 27 of

the Evidence Act and the judgments referred above that only

information in the form of confession received from disclosure

made by an accused cannot be taken as reliable piece of evidence

in isolation until there is a discovery or a recovery or another fact

to corroborate the said information and prove its veracity.

Precisely, it can be said that Section 27 of Evidence Act is an

exception to Sections 24, 25 and 26 of Evidence Act, however,

the exception limits its admissibility only upto what is envisaged

in the statute itself and not beyond that.

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9. As far as the question of fetter contained under Section 37

of NDPS Act is concerned this court is aptly guided by a recent

ruling titled Mohd Muslim @ Hussain V. State (NCT OF

DELHI) in Special Leave Petition (CRL.) NO(S). 915 of 2023

order dated 28.03.2023, Hon'ble the Supreme Court has

discussed Section 37 of the NDPS Act in detail and has allowed

the accused in that matter to be released on bail while holding

that the impediment contained under Section 37 is not a bar to

grant of bail in cases where there is undue delay in conclusion of

trial. 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 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

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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."

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

the petitioner that he is not guilty of offence seems to be worth

considering, therefore, 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.

11. In light of these facts and circumstances, it is deemed

suitable to grant the benefit of bail to the petitioners in the

present matter. Needless to say, none of the observations made

herein under shall affect the rights of either of the parties during

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trial and this Court refrains from commenting on the niceties of

the matter.