Rajasthan High Court - Jodhpur
Suresh Kumar vs State Of Rajasthan (2023:Rj-Jd:40566) on 22 November, 2023
Author: Farjand Ali
Bench: Farjand Ali
[2023:RJ-JD:40566]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 10596/2023
Suresh Kumar S/o Sh. Kewal Ram, Aged About 22 Years,
Budaliya, Ps Dechu, Dist. Jodhpur Rural (Raj.). (At Present
Lodged In Dist. Jail, Sirohi).
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Arjun Singh Rathore
For Respondent(s) : Mr. Shrawan Bishnoi, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
22/11/2023
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 Pindwara
3. District Sirohi
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 07.08.2023
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:40566] (2 of 4) [CRLMB-10596/2023]
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 had lent his pickup to the accused
in exchange of some amount and he had nothing to do with the
commission of alleged offences. In the case at hand, nothing has
[2023:RJ-JD:40566] (3 of 4) [CRLMB-10596/2023]
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
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. Accordingly, the instant bail application under Section 439
Cr.P.C. is allowed and it is ordered that the accused-petitioner,
named above, shall be enlarged on bail provided he furnishes a
[2023:RJ-JD:40566] (4 of 4) [CRLMB-10596/2023]
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
his appearance before the court concerned on all the dates of
hearing as and when called upon to do so.
(FARJAND ALI),J
75-Mamta/-
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