Sitaram vs State Of Rajastahn (2023:Rj-Jd:41215)
2023 Latest Caselaw 10101 Raj

Citation : 2023 Latest Caselaw 10101 Raj
Judgement Date : 28 November, 2023

Rajasthan High Court - Jodhpur

Sitaram vs State Of Rajastahn (2023:Rj-Jd:41215) on 28 November, 2023

Author: Farjand Ali

Bench: Farjand Ali

[2023:RJ-JD:41215]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
     S.B. Criminal Miscellaneous Bail Application No. 13363/2023

Sitaram S/o Jagdish Prajapat, Aged About 20 Years, R/o Parlai
Tehsil And Ps Singoli Dist. Nimach M.p. Presently Lodged In Dist.
Jail Chittorgarh
                                                                     ----Petitioner
                                      Versus
State Of Rajastahn, Through Pp
                                                                   ----Respondent


For Petitioner(s)           :     Mr. Umesh Kant Vyas
For Respondent(s)           :     Mr. S. K. Bhati, PP



                  HON'BLE MR. JUSTICE FARJAND ALI

Order

28/11/2023

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                  Bengu
     3.     District                                  Chittorgarh
     4.     Offences alleged in the FIR               Sections 8/15 of NDPS
                                                      Act.
     5.     Offences added, if any                    Section 29 of NDPS Act.
     6.     Date of passing of impugned 22.09.2023
            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:41215] (2 of 4) [CRLMB-13363/2023]

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

Vinod 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.

5. 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 the present petitioner sold the contraband to the him. In

the case at hand, nothing has been recovered from the present

petitioner and no other legally admissible evidence that could

[2023:RJ-JD:41215] (3 of 4) [CRLMB-13363/2023]

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. 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

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

[2023:RJ-JD:41215] (4 of 4) [CRLMB-13363/2023]

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