Wahid Khan @ Bhayulal vs Union Of India ...
2023 Latest Caselaw 2266 Raj

[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

[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.

[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.

[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/-

Powered by TCPDF (www.tcpdf.org)