Rajasthan High Court - Jodhpur

Raja Ram @ Raju Jhuriya vs State Of Rajasthan ... on 1 May, 2023

Bench: Farjand Ali

[2023/RJJD/013860]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Miscellaneous 2nd Bail Application No. 2636/2023

Raja Ram @ Raju Jhuriya S/o Bhajjan Lal, Aged About 32 Years, R/o S.h.p.d., Suratgarh City Police Station, District Sri Ganganagar. (Lodged In Sub Jail, Raisinghnagar)

----Petitioner

Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. Jaikishan Haniya For Respondent(s) : Mr. Gaurav Singh, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

01/05/2023

1. The instant bail application has been filed by the petitioner

Raja Ram @ Raju Jhuriya S/o Bhajjan Lal under Section 439 Cr.P.C

against the order impugned dated passed by learned court below

in connection with FIR No.38/2022 registered at Police Station

Jaitsar, District Sri Ganganagar for the offences under Sections

8/22 and 29 of NDPS Act. The first bail application came to be

dismissed by this Court vide order dated 21.12.2022 as not

pressed.

2. Learned counsel for the petitioner submits that now, charge-

sheet has been filed against the present petitioner, hence the

present bail application is filed. He has nothing to do with the alleged

offences and no useful purpose would be served by keeping him behind

the bars. It is the admitted case of the prosecution that neither the

petitioner was found present at the crime scene nor any incriminating

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material or contraband was recovered from his possession. 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. He has been

made accused on the strength of confessional statement made by

the principal-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.

3. Per contra, learned Public Prosecutor opposes the bail

application on the ground that the recovered contraband total

18,800 tablets weighed 5.188 kilograms in total and that is way

above the commercial quantity demarcated for Tramadol

Hydrochloride Sustained Release Tablets I.P. 100 mg TEERCARE-

SR and therefore, in view of the bar contained under Section 37 of

NDPS Act, no case of bail is made out.

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4. Heard. Perused the material available on record.

5. It is alleged that the said principal-accused disclosed this fact

to the I.O. that the present petitioner sold the contraband to the

principal-accused. Upon receiving the information from principal-

accused, the present petitioner was booked and arrested in the

matter. No call recording, text or chat of the petitioner with the

principal accused or the other co-accused is available on record.

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

corroborations or support to verify the confession made by the

principal accused to the Police Officer while in lockup. 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. Except disclosure

statement made to the police in custody by the principal accused,

there is no other evidence, direct or indirect to substantiate the

charge against the petitioner.

6. 7. In this regard, we may refer to Sangappa

Basalingappa Rabasetty Versus State of Karnataka reported

in Criminal Appeal No.37/1982 where in it was held as under:-

"The confessions made to the police are irrelevant and inadmissible in evidence under Sections 24, 25 and 26 of the Evidence Act. Section 27 makes a departure from the principle laid down in Sections 24 and 26 of the Evidence Act. When the information contained in the statements (whether amounting to a confession or not)made by an accused person in police custody is confirmed by the finding of some object or fact, the danger disappears; for the discovery of the stolen

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goods, the instrument of crime, the dead body, the clothes which the deceased was wearing or any other material thing, which are capable of being perceived by the senses demonstrates conclusively that these portions at least of the confession cannot have been false. In such a case so much of the information given by the accused as relates distinctly to the fact thereby discovered becomes relevant under Section 27. The Section is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence. It can be seen that simply discovery of fact as a result of information from accused does not make it admissible unless its relevancy is established by other evidence showing the connection between the fact discovered and the offence charged and the accused. Section 27 involves the principle of confirmation by subsequent facts. There appears to be a distinction between a statement that "it is lying hid or buried at a certain place" and "I hid or buried it at a certain place". For instance, in the case of a dead body, a statement of the latter kind involves a confession of concealing evidence or conniving at such being done; or the statement" I stole and buried or concealed" or "the stolen property was hid at a certain place" includes a confession of theft and it might also be hit by Sections 25 or 26. In the application of the rule it should never be lost sight of that part of a statement wherein the accused admits his guilt in regard to an offence is inadmissible as it does not in any sense relate distinctly to the discovery of any fact."

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7. A simple reading of Section 27 of the Evidence Act and

landmark judgments show that the part of information in the

form of confession received from disclosure made by an accused

in isolation cannot be taken as reliable piece of evidence until

there is a discovery or recovery of another fact to corroborate and

prove the veracity of the said information.

8. 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

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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 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