Rajasthan High Court - Jodhpur

Prabhu vs State Of Rajasthan ... on 4 May, 2023

Bench: Farjand Ali

[2023/RJJD/013464]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 1130/2023

Prabhu S/o Tulsi Ram Gurjar, Aged About 31 Years, Choparo Ka Khera, P.s. Bassi Dist. Chittorgarh. (At Present Lodged In Dist. Jail, Chittorgarh).

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


For Petitioner(s)           :     Mr. Kailash Khilery
For Respondent(s)           :     Mr. Javed Gauri, PP



                HON'BLE MR. JUSTICE FARJAND ALI

                                       Order

04/05/2023

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

Prabhu S/o Tulsi Ram Gurjar under Section 439 Cr.P.C against the

order impugned dated passed by learned court below in

connection with FIR No.32/2020 registered at Police Station

Vijaypur, District Chittorgarh for the offences under Sections 8/15,

8/18 and 8/29 of NDPS Act.

2. The first bail application came to be dismissed by this Court

vide order dated 19.12.2022 with liberty to the petitioner to file

afresh after statement of the I.O. is recorded in trial. Now, the

I.O. has been examined, hence the present second bail application

is filed.

3. Learned counsel for the petitioner submits that a false case

has been foisted against the petitioner. He has nothing to do with

the alleged offences and no useful purpose would be served by

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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 material or contraband was

recovered from his possession. He has been made accused on the

strength of confessional statement allegedly made by one Prakash

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. He submits that for booking an

accused for the accusation of the offence committed under Section

29 of the NDPS Act, there must be some corroborative evidence.

Since nothing is there on record from which involvement of the

accused can be presumed, therefore, the embargo under Section

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

on bail.

4. Per contra, learned Public Prosecutor opposed the bail

application on the ground that contraband poppy husk weighing

305 Kilograms and opium weighing 3 kilograms were recovered.

The recovered contraband are way above the demarcated

commercial quantity and therefore, in view of the bar contained

under Section 37 of NDPS Act, no case of bail is made out.

5. Heard. Perused the material available on record.

6. It is an admitted fact of the case that when the search and

seizure was conducted no one was present in the house from

where the recovery has been affected. No call recording, text or

chat of the petitioner with the principal accused or the other co-

accused is available on record. Upon receiving the information from

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one Prakash, the present petitioner was booked and arrested in the

matter.

7. 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-petitioner with the other co-accused except

the disclosure statement of one Prakash made to the police in

custody. The memo of verification of site plan prepared allegedly

at the stance of petitioner was already known to the I.O. which he

admits in cross-examination. 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. 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.

8. 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:

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"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."

9. 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.

10. 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

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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 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

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bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act."

11. 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.

12. 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 admissibility of evidence and the

quality of evidence yet it is of the firm opinion that the appellant

deserves to be enlarged on bail in this case.

13. Accordingly, the second bail application under Section 439

Cr.P.C. is allowed and it is ordered that the accused-petitioner

Prabhu S/o Tulsi Ram Gurjar 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.