Kamlesh vs State Of Rajasthan
2023 Latest Caselaw 2383 Raj

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       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR

S.B. Criminal Miscellaneous 2nd Bail Application No. 1218/2023

Kamlesh S/o Shri Mangilal, Aged About 47 Years, R/o Kajli, P.s. Ranthajana, District Pratapgarh, Rajasthan. (At Present Lodged In District Jail, Pratapgarh)

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

----Respondent Connected With S.B. Criminal Miscellaneous 2nd Bail Application No. 1217/2023 Dilip S/o Shri Prahlad, Aged About 32 Years, R/o Umaria, P.s. Piplia Mandi, District Mandsaur, Madhya Pradesh. (At Present Lodged In District Jail, Pratapgarh)

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

----Respondent

For Petitioner(s) : Mr. Ramesh Chandra Purohit For Respondent(s) : Mr. Jawed Gauri, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

22/03/2023 The instant bail applications have been filed by the

petitioners Kamlesh S/o Shri Mangilal and Dilip S/o Shri Prahlad

under Section 439 Cr.P.C against the order impugned dated

07.01.2023 passed by learned court below in connection with FIR

No.01/2022 registered at Police Station Rathanjana, District

Pratapgarh for the offence(s) under Sections 8/15 & 29 of NDPS

Act.

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Learned counsel for the petitioners submits that a false case

have been foisted against the petitioner. They have nothing to do

with the alleged offences and no useful purpose would be served

by keeping them behind the bars. It is the admitted case of the

prosecution that neither the petitioners were found present at the

crime scene nor any incriminating material or contraband was

recovered from their possession. They have been made accused

on the strength of confessional statement made by the co-accused

during police custody which is otherwise not admissible in

evidence by virtue of Sections 25 and 26 of Indian Evidence Act.

The said disclosure statement does not come within the ambit of

Section 27 of Indian Evidence Act. It has been propounded by the

Privy Council in the case of Pulukuri Kottaya & Ors. Vs.

Emperor (AIR 1947 PC 67) that since nothing was discovered or

recovered, the disclosure statement made while in custody which

distinctly connects the accused-petitioners with the commission of

the crime cannot betaken as an admissible piece of evidence.

Since nothing is there on record from which involvement of the

accused can be presumed, therefore, the condition under Section

37 of the NDPS Act do not come in way of releasing the petitioners

on bail.

Per contra, learned Public Prosecutor opposed the bail

applications on the ground that the recovered contraband weighed

2303 kilograms in total and that is way above the commercial

quantity demarcated for Poppy husk.

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Heard and perused the material available on record. The

seizing officer during his cross examination candidly admitted that

during the investigation, the agency did not come across any

evidence, direct or indirect, to show the connection of the present

accused-petitioners with the other co-accused. The names of the

present petitioners do not find any mention in the information

received under Section 42 of the NDPS Act. He further admitted

that as per the seizure memo, parchakayami and spot documents

as well as the statements of witnesses available on spot and

statements of members of the seizing team, nothing has come on

record regarding the alleged involvement of the petitioners in the

present case. During investigation, no witness was found who had

seen accused Vinod, Kmalesh, Dilip and Jitendra Singh together,

exchanging the contraband.

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."

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

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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.

This court is of the view that at least there must be some

corroborations or support to verify the confession made by the

principle accused to the Police Officer while in lockup. No one

would have come to the witness box to establish the above fact

except the IO who can say that co-accused made a confession

before him. 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.

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

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the aforesaid confessional statement, nothing is there on record to

corroborate or substantiate or verify the alleged charges.

Coming to the question of the ban contained in Section 37 of

NDPS Act, it is mandated that untill fulfillment of the twin

conditions of this section, bail should not be granted. 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 as well as to ensure the completion of trial expeditiously. At

this stage, this court refrains from making any observations on the

merits of the case as this would put an adverse effect on the trial.

This court is of the view that at least there should be some

legally admissible evidence to support the charge. Since the

punishment provision is very stringent and the rule of

jurisprudence is that "graver the charges, greater has to be the

standard of proof".

Having regard to the totality of facts and circumstances as

available on record and upon a consideration of the arguments

advanced, at this stage of infancy of trial, this Court refrains from

passing any comments over the nature of accusation and the

quality of evidence yet it is of the opinion that the petitioners

deserves to be enlarged on bail. It is to be made clear that none

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of the observations made herein above shall influence the trial

judge in any manner so as to adversely affect the interests of

either of the parties.

Accordingly, the second bail applications under Section 439

Cr.P.C. are allowed and it is ordered that the accused-petitioners,

named above, shall be enlarged on bail provided each of them

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 their appearance before the court concerned on all the

dates of hearing as and when called upon to do so.

(FARJAND ALI),J 82-83/-

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