Rajasthan High Court - Jodhpur
Om Prakash @ Gudda vs State Of Rajasthan (2023:Rj-Jd:41210) on 28 November, 2023
Author: Farjand Ali
Bench: Farjand Ali
[2023:RJ-JD:41210]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 15146/2023
Shambhulal S/o Shri Nakshatramal, Aged About 28 Years, R/o
Idara, P.s. Mangalwad, Dist. Chittorgarh, Rajasthan. (At Present
Lodged At Dist. Jail, Pratapgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Miscellaneous Bail Application No. 15147/2023
Om Prakash @ Gudda S/o Shri Karu Lal, Aged About 30 Years,
R/o Gamerpura, Jeeran Police Station, Distt. Neemach (Mp)
(Lodged In Dist Jail, Pratapgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Vijay Kumar Gaur
Mr. B. Ray Bishnoi
For Respondent(s) : Mr. Abhishek Purohit, 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 Chhoti Sadri
3. District Pratapgarh
[2023:RJ-JD:41210] (2 of 5) [CRLMB-15146/2023]
4. Offences alleged in the FIR Sections 8/15 and 18 of
NDPS Act and Sections
3/25 of Arms Act as well
as Sections 307, 353,
420, 469, 471 and 34 of
IPC.
5. Offences added, if any Section 29 of NDPS Act.
6. Date of passing of impugned 03.10.2023
order
2. It is contended on behalf of the accused-petitioners that no
case for the alleged offences is made out against them and thier
incarceration is not warranted. There are several flaws and laches
in the case of the prosecution. It is the admitted case of the
prosecution that neither the petitioners were found present at the
crime scene nor any incriminating material or contraband were
recovered from their possession. They have 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.
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-petitioners and they have 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
[2023:RJ-JD:41210] (3 of 5) [CRLMB-15146/2023]
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 co-accused disclosed this fact to the I.O. that the petitioner
Shambhulal sold the stolen Scorpio car to him in exchange of Rs
2,00,000/- and that the petitioner Omprakash loaded the
contraband onto the vehicle that was recovered, thus, the liability
of the petitioner Shambhulal is limited to the extent of selling the
car and there is no connection that can be established between
the crime and the said petitioner at this stage and the petitioner
Omprakash is liable for the loading of the contraband onto the
seized vehicle. 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. This court is of the view
that at least there must be some corroborations or support to
[2023:RJ-JD:41210] (4 of 5) [CRLMB-15146/2023]
verify the confession made by the accused to the Police Officer
while in lockup.
5. 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."
6. 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. In light of the fact that the trial
will take considerable time to conclude, it is not justifiable to keep
the petitioners behind bars for an indefinite period at this
juncture. The genuineness of the allegations is a matter to be
adjudged after appreciation of evidence during trial and therefore,
[2023:RJ-JD:41210] (5 of 5) [CRLMB-15146/2023]
it is made clear that the above observations shall not influence the
trial judge in any manner while presiding over the matter. Looking
to the totality of facts and circumstances of the case and the
possibility that the trial may take long time to conclude, this court
deems it just and proper to enlarge the petitioner on bail.
7. Accordingly, the instant bail applications under Section 439
Cr.P.C. are allowed and it is ordered that the accused-petitioners
as named in the cause title shall be enlarged on bail provided each
of them 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 their appearance before the court concerned on all
the dates of hearing as and when called upon to do so.
(FARJAND ALI),J
535-Mamta/-
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