Saidad vs State Of Rajasthan (2023:Rj-Jd:40728)
2023 Latest Caselaw 10020 Raj

Citation : 2023 Latest Caselaw 10020 Raj
Judgement Date : 23 November, 2023

Rajasthan High Court - Jodhpur

Saidad vs State Of Rajasthan (2023:Rj-Jd:40728) on 23 November, 2023

Author: Farjand Ali

Bench: Farjand Ali

[2023:RJ-JD:40728]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
     S.B. Criminal Miscellaneous Bail Application No. 10447/2023

Saidad S/o Shahmeer Khan, Aged About 35 Years, R/o Village
Ekal, Tehsil Sedwa, District Barmer. (At Present Lodged In
District Jail, Barmer)
                                                                     ----Petitioner
                                      Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)           :     Mr. R. J. Poonia
For Respondent(s)           :     Mr. Sharwan Bishnoi, PP



                  HON'BLE MR. JUSTICE FARJAND ALI

Order

23/11/2023

1. The jurisdiction of this court has been invoked by way of

filing an instant application under Section 439 CrPC at the

instance of accused-petitioner. The requisite details of the matter

are tabulated herein below:

S.No.                           Particulars of the Case

     2.     Concerned Police Station                  Dhanau
     3.     District                                  Barmer
     4.     Offences alleged in the FIR               Sections 8/15, 25 and 29
                                                      of NDPS Act.
     5.     Offences added, if any                    --
     6.     Date of passing of impugned 26.04.2023
            order

2. It is contended on behalf of the accused-petitioner that no

case for the alleged offences is made out against him and his

incarceration is not warranted. There are several flaws and laches

in the case of the prosecution. It is the admitted case of the

[2023:RJ-JD:40728] (2 of 5) [CRLMB-10447/2023]

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 co-accused

Goga Ram 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. 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 petitioners on bail. There are no factors at

play in the case at hand that may work against grant of bail to the

accused-petitioner and he has been made an accused based on

conjectures and surmises.

3. Per contra, learned Public Prosecutor opposes the bail

application and submits that the alleged recovered contraband is

way above the demarcated commercial quantity, thus, the

impediment contained under Section 37 of NDPS Act will be

attracted in the factual situation of the present case.

4. Heard and perused the material available on record. It is an

admitted case of the prosecution that when the search and seizure

was conducted the petitioner was not present in or near the car

from which the recovery has been affected. It is alleged that the

said principal-accused disclosed this fact to the I.O. that he was

going to deliver the contraband to him. However, no connecting

evidence has been produced so as to add direct nexus between

the petitioner and other persons from whom the contraband was

[2023:RJ-JD:40728] (3 of 5) [CRLMB-10447/2023]

recovered. There is no call data record available on the record and

the petitioner has been arrested in this case on the basis of

suspicion only. In the case at hand, nothing has been recovered

from the present petitioner and no other legally admissible

evidence that could connect the petitioner to the crime or to the

other co-accused persons for that matter has come to the fore,

thus, the disclosure statement of the co-accused on the basis of

which the present petitioner has been made an accused in this

case remains just illusory knowledge and does not become a fact

proved as no fact has been discovered in consequence of the

information disclosed by the co-accused, thus, it cannot be said

with certainty that the accused can be roped in for commission of

offence under Section 29 of the NDPS Act.

5. 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. 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.

6. 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

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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."

7. 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. No apprehension has been

shown by the Public Prosecutor that if the petitioner is released on

bail he will flee from justice and will not be available for trial.