Rajasthan High Court - Jodhpur

Budhram vs State Of Rajasthan ... on 25 May, 2023

Bench: Farjand Ali

[2023/RJJD/017408]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 2888/2023

Budhram S/o Sadram, Aged About 30 Years, R/o Mando Ki Beri, Faglu Ka Talla, Bhuniya, Dhorimanna Police Station, Barmer, District Barmer. (Lodged In District Jail, Barmer)

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

----Respondent

For Petitioner(s) : Mr. B.R. Bishnoi For Respondent(s) : Mr. A.R. Choudhary, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

25/05/2023

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

Budhram S/o Sadram under Section 439 Cr.P.C against the order

impugned dated passed by learned court below in connection with

FIR No.318/2021 registered at Police Station Dhorimanna, District

Barmer for the offences under Sections 8/21, 25, 29 and 30 of

NDPS Act. The first bail application came to be dismissed by this

Court vide order dated 21.12.2022 as not pressed.

2. Briefly stated, the facts of the instant case are that a jeep

bearing registration No. RJ 19 UA 3009 was intercepted by the

police at the time of 'nakabandi' on MRT road on 27.09.2021 at

about 02:45 P.M. Upon suspicion, the police officers searched the

vehicle and during search, total 100 grams each of MDMA was

found from both the persons which was seized by the police. It is

stated in the FIR that one of the persons who was sitting on the

[2023/RJJD/017408] (2 of 8) [CRLMB-2888/2023]

back seat of the jeep and he ran towards the nearby bushes and

could not be grabbed.

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

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 principal-

accused Gogaram which is not admissible in evidence by virtue of

Sections 25 and 26 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. Similarly situated co-accused Ramgopal

has been granted bail by a coordinate bench of this court, thus, on

the ground of parity the present petitioner also deserves to be

englared on bail. 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.

4. Per contra, learned Public Prosecutor opposed the bail application

on the ground that contraband MDMA weighing 100 grams was

recovered. The recovered contraband MDMA is 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.

[2023/RJJD/017408] (3 of 8) [CRLMB-2888/2023]

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

seizure, it was alleged that one of the persons had fled from the

scene and that person has been stated to be the present

petitioner on the basis of statement of principal-accused. There is

no evidence whatsoever to connect the present petitioner with the

alleged recovery of contraband except the confessional statement

of Ramgopal. 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 Office. 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.

7. The Privy Council in the case of Pulukuri Kotayya Vs.

Emperor reported in AIR (1947) PC 67 discussed the provision

stipulated under Section 27 of the Indian Evidence Act. The

relevant portion of the judgment is reproduced herein as under:

"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.

Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a

[2023/RJJD/017408] (4 of 8) [CRLMB-2888/2023]

knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A'., these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."

8. The observations of the Privy Counsel in the case of

Pulukuri Kotayya (supra) stand accepted by Hon'ble the

Supreme Court in the case of Prabhoo Vs. State of Uttar

Pradesh, reported in AIR (1963) SC 113 and then, it has been

reiterated/referred in a catena of legal pronouncements.

9. 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 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

[2023/RJJD/017408] (5 of 8) [CRLMB-2888/2023]

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."

10. It can be manifested from a simple reading of the 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.

11. 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

[2023/RJJD/017408] (6 of 8) [CRLMB-2888/2023]

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 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

[2023/RJJD/017408] (7 of 8) [CRLMB-2888/2023]

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

12. In the facts and circumstances of the present case, the

applicability of fetter contained under Section 37 of NDPS Act is

questionable, though this court refrains from rendering opinion on

the same as it is a question to be answered during final

adjudication of the trial.

13. 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.

14. Accordingly, the second bail application under Section 439