Udai Lal vs State Of Rajasthan ...
2023 Latest Caselaw 8825 Raj

(1 of 5) [CRLMB-6594/2023]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 6594/2023

Udai Lal S/o Dhanraj Dhakad, Aged About 36 Years, R/o Tai Ka Kheda @ Bhuijiya Kheri, Sadar Nimbahera Police Station, District Chittorgarh. (Lodged In Central Jail, Chittorgarh)

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

----Respondent Connected With S.B. Criminal Miscellaneous 2nd Bail Application No. 2531/2023 Mukesh S/o Sri Chaggan Lal Dangi, Aged About 30 Years, Dangiyo Ka Mohalla, Satkhanda, Sadar Nimbahera Police Station, Nimbahera, Dist. Chittorgarh. (Lodged In Dist. Jail, Chittorgarh).

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

----Respondent

For Petitioner(s) : Mr. Bhagirath Ray Bishnoi Mr. Surendra Singh Shaktawat For Respondent(s) : Mr. S.S. Rajpurohit, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

30/10/2023

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

filing an instant applications under Section 439 CrPC at the

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

are tabulated herein below:

S.No                          Particulars of the Case
.
     1.    FIR Number                                  No.199/2021


                                         (2 of 5)                    [CRLMB-6594/2023]


     2.    Concerned Police Station                    Sadar Nimbahera
     3.    District                                    Chittorgarh
     4.    Offences alleged in the FIR                 Sections 8/15 of NDPS
                                                       Act
     5.    Offences added, if any                      8/25 and 8/29 of NDPS
                                                       Act

6. Date of passing of impugned 01.02.2023 order (SBCRLMB-6594/2023)

7. Date of passing of impugned 04.01.2023 order (SBCRLMB-2531/2023)

2. The first bail applications of petitioners came to be dismissed

as not pressed by a this Court vide order dated 21.12.2022. Now,

seizure officer has been examined, hence the present second bail

applications are filed.

3. It is contended on behalf of the accused-petitioners that no

case for the alleged offences is made out against them and their

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. 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.

Since nothing is there on record from which involvement of the

accused can be presumed, therefore, the embargo under Section

(3 of 5) [CRLMB-6594/2023]

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 accused based on conjectures and surmises.

4. Contrary to the submissions of learned counsel for the

petitioner, learned Public Prosecutor opposes the bail application

and submits that the recovered contraband 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. Have considered the submissions made by both the parties

and have perused the material available on record.

6. It is an admitted case of the prosecution that when the

search and seizure was conducted the petitioners were not

present in or near the tractor from which the recovery has been

affected. It is alleged that the co-accused- Prakash disclosed this

fact to the I.O. that petitioner- Udai Lal was driving the tractor and

except his confessional statement, there is no other convincing

evidence against him. It is revealing from the cross-examination

of the I.O. that there is no ocular evidence against accused

Mukesh and he has been roped in only on the basis of the

revelation arrived at from the investigation and the call details of

accused Prakash that both of them were taking to each other

when the incident took place. It was also admitted by the I.O. that

though they did not belong to the same village, their villages are

adjacent to each other which further reflects that they might be

familiar with each other from before.

(4 of 5) [CRLMB-6594/2023]

7. 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.

8. 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."

9. 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.

(5 of 5) [CRLMB-6594/2023]

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.

10. 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.

11. 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 407-408-Mamta/-

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