Rajasthan High Court - Jodhpur

Kamlesh Dhakad vs State Of Rajasthan ... on 25 May, 2023

Bench: Farjand Ali

[2023/RJJD/017410]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 3543/2023

Kamlesh Dhakad S/o Indramal Dhakad, Aged About 28 Years, R/o Phusriya, Police Station Singoli, District Neemach (Mp) (Presently Lodged In District Jail, Bhilwara)

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

----Respondent

For Petitioner(s) : Mr. Ramdeen Choudhary For Respondent(s) : Mr. Gaurav Singh, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

25/05/2023

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

Kamlesh Dhakad S/o Indramal Dhakad under Section 439 Cr.P.C

against the order impugned dated passed by learned court below

in connection with FIR No.320/2021 registered at Police Station

Bijoliya, District Bhilwara for the offences under Sections 8/15,

8/18 and 8/29 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 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

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

[2023/RJJD/017410] (2 of 7) [CRLMB-3543/2023]

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

strength of confessional statement allegedly made by co-accused

during police custody which is otherwise not admissible in

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

Learned counsel submits that if at the time of effecting the recovery,

the principal accused would have disclosed regarding the complicity of

the petitioner then it would have been a different situation because

instantaneous and spontaneous disclosure regarding alleged

transaction may come within the premise of doctrine of res gestae

but no such thing was disclosed by the principal accused at that

moment in time. The alleged disclosure statement was said to

have been made by the co-accused, 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. Since

nothing is there on record from which involvement of the accused

can be presumed, therefore, the embargo under Section 37 of

NDPS Act do not come in way of releasing the petitioner on bail.

3. Per contra, learned Public Prosecutor opposed the bail

application on the ground that contraband poppy husk weighing

95.300 Kilograms and opium weighing 4.810 kilograms were

recovered at the instance of co-accused persons which were sold to

them by the petitioner. 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.

[2023/RJJD/017410] (3 of 7) [CRLMB-3543/2023]

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

co-accused persons. Upon receiving the information from co-

accused, the present petitioner was booked and arrested in the

matter. 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. 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.

6. 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 goods, the instrument of crime, the dead body, the

[2023/RJJD/017410] (4 of 7) [CRLMB-3543/2023]

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."

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

landmark judgments show that the part of information in the

[2023/RJJD/017410] (5 of 7) [CRLMB-3543/2023]

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 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

[2023/RJJD/017410] (6 of 7) [CRLMB-3543/2023]

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