Rajasthan High Court - Jodhpur
Ram Kishan Jat vs State Of Rajasthan (2024:Rj-Jd:42351) on 17 October, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:42351]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous II Bail Application No. 13040/2024
Ram Kishan Jat S/o Ramchandra Jat, Aged About 36 Years, R/o
Jato Ka Bass, Village Basani Seja, Police Station Gotan, District
Nagaur. (At Present Lodged In District Jail, Bhilwara)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Lokesh Mathur
Mr. B.R. Jajra
For Respondent(s) : Mr. Rajesh Bhati, AGA with
Mr. Ravindra Singh
HON'BLE MR. JUSTICE FARJAND ALI
Order
17/10/2024
1. The jurisdiction of this Court has been invoked by way of
filing application under Section 439 Cr.P.C. at the instance of
accused-petitioners. The requisite details of the matter are
tabulated herein below:
S.No. Particulars of the Case
2. Concerned Police Station Pur
3. District Bhilwara
4. Offences alleged in the FIR Under Sections 8/15
of the NDPS Act
5. Offences added, if any Sections 8/29 of the
NDPS Act
6. Date of passing of impugned 27.09.2024
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 no factors at play in
the case at hand that may work against grant of bail to the
[2024:RJ-JD:42351] (2 of 12) [CRLMB-13040/2024]
accused-petitioner and he has been made accused based on
conjectures and surmises. Learned counsel for the petitioner
further submits that the co-accused Shobharam (S.B. Criminal
Misc. 2nd Bail Application No. 12653 /2024) has already been
enlarged on bail by this Court vide order dated 08.10.2024. He
further submits that case of the petitioner is not distinguishable
with that of the case of the aforesaid co-accused who has
already been enlarged on bail.
3. Contrary to the submissions of learned counsel for the
petitioner, learned Public Prosecutor opposes the bail
application and submits that the present case is not fit for
enlargement of accused on bail.
4. I have considered the submissions made by both the parties
and have perused the material available on record. Co-
accused Shobharam has already been enlarged on bail vide
order dated 08.10.2024 passed in S.B. Criminal Misc. 2 nd Bail
Application No. 12653/2024. The relevant part of the afresaid
order is being reproduced hereinbelow:-
"6. Perusal of the record revealing that the petitioner
is behind the bars in this case since 18.10.2023. The
petitioner was not present at the time of alleged
recovery and nothing incriminating has been recovered
at his instance; He has been arraigned as an accused
only on the basis of confessional statements made by
the co-accused Bhanwar Lal and Sita Ram. It is
pertinent to note here that besides the above
disclosure statements, there is no other material on
record to show or suggest the connectivity of the
petitioner either with the contraband or with the
principal accused. Detention of an individual based on
[2024:RJ-JD:42351] (3 of 12) [CRLMB-13040/2024]
such disclosure statement cannot be permitted for an
indefinite period.
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 co-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
[2024:RJ-JD:42351] (4 of 12) [CRLMB-13040/2024]
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. This Court is
cognizant of the provisions contained in Section 37 of
the NDPS Act but considering the submissions made by
learned counsel for the accused-petitioner regarding
him being made an accused only on the basis of
statement of co-accused.
10. Simply mentioning in the charge sheet that
offence under Section 29 of the NDPS Act is made out
against the petitioner is not sufficient enough to allow
his incarceration until and unless any material is
attached with the charge-sheet showing
involvement/participation of the petitioner. For ready
reference Section 29 of the NDPS Act is being
reproduced as under:-
29. Punishment for abetment and criminal
conspiracy.--
(1) Whoever abets, or is a party to a criminal
conspiracy to commit, an offence punishable
under this Chapter, shall, whether such offence be
or be not committed in consequence of such
abetment or in pursuance of such criminal
conspiracy, and notwithstanding anything
contained in section 116 of the Indian Penal Code
(45 of 1860), be punishable with the punishment
provided for the offence.
(2) A person abets, or is a party to a criminal
conspiracy to commit, an offence, within the
meaning of this section, who, in India, abets or is
a party to the criminal conspiracy to the
commission of any act in a place without and
beyond India which-
[2024:RJ-JD:42351] (5 of 12) [CRLMB-13040/2024]
(a) would constitute an offence if committed
within India; or
(b) under the laws of such place, is an offence
relating to narcotic drugs or psychotropic
substances having all the legal conditions required
to constitute it such an offence the same as or
analogous to the legal conditions required to
constitute it an offence punishable under this
Chapter, if committed within India.
A plain reading of the provision above makes it
clear that if a person abets the other to commit the
offence under the NDPS Act, or a person who hatches a
conspiracy with other persons to commit an offence
punishable under the NDPS Act, can be charged for the
offence under Section 29 of the NDPS Act and it does
not matter whether the offence was committed or not
in consequence of such abetment or in pursuance of
the criminal conspiracy hatched by them.
11. Abetment is defined under Section 107 of the IPC
for the ready reference, the same is being reproduced
hereunder:-
Abetment of a thing.
A person abets the doing of a thing, who--
First.--Instigates any person to do that thing; or
Secondly.--Engages with one or more other
person or persons in any conspiracy for the doing
of that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in
order to the doing of that thing; or
Thirdly.--Intentionally aids, by any act or illegal
omission, the doing of that thing.
From the above, it is revealing that a person
abets the fact of doing of a thing if he instigate
someone to do it or a person abates the doing of a
thing, if he conspire with others to do it. If an act or
[2024:RJ-JD:42351] (6 of 12) [CRLMB-13040/2024]
illegal omission occurs in furtherance of that
conspiracy then it can be said that an offence of
abetment was committed. The other aspect of the
provision is that if a person, while abetting the other
intentionally aids or assists in doing the thing by any of
his act or illegal omission, he is an accused of
abetment.
Criminal Conspiracy is explained under Section 120-B
of the IPC, which is as under:-
120B. Punishment of criminal
conspiracy.--
(1) Whoever is a party to a criminal
conspiracy to commit an offence punishable
with death, [imprisonment for life] or
rigorous imprisonment for a term of two
years or upwards, shall, where no express
provision is made in this Code for the
punishment of such a conspiracy, be
punished in the same manner as if he had
abetted such offence.
(2) Whoever is a party to a criminal
conspiracy other than a criminal conspiracy
to commit an offence punishable as
aforesaid shall be punished with
imprisonment of either description for a
term not exceeding six months, or with fine
or with both.]
To invoke the provision of Criminal conspiracy
there has to be an agreement of mind between two or
more people to commit an illegal act or to commit an
act though not illegal but done by illegal means and the
parties have a common intention to commit the act.
12. What is emanating from the provision of abetment
or conspiracy that there has to be an act of abetment
on behalf of the accused or he must be in agreement
with the other persons to do an illegal act. After
[2024:RJ-JD:42351] (7 of 12) [CRLMB-13040/2024]
minutely going through the entire charge-sheet, not an
iota of evidence or tissue of the material is there to
show or suggest that either there had been a meeting
between the petitioner and the principal accused or
there was any exchange of calls between them or they
were in any manner connected with each other or even
to say that anything was done by the petitioner which
somehow added/assisted/facilitated/or in any manner
cooperated with the principal accused. No meeting, no
CDR, no text, no messages, no recording, no piece of
paper, no letter, no evidence regarding presence of
both, the principal accused and the petitioner at a
common place is on record.
13. True, it is that the appreciation rather meticulous
appreciation of evidence is not to be done at the
inception of the trial but at the same time, it cannot be
forgotten that here is an issue of releasing a person on
bail who has been detained from 18.10.2023 for
accusation of committing an offence in a particular
provision, at least, there must be something to either
corroborate/bolster, to support or verify the saying of
the police officer that the petitioner either abetted or
was in conspiracy with the principal accused. What
would be the basis for the trial of this accused?
Whether only the assertion of the police officer that
petitioner is guilty of the charge without single piece of
proof; Whether the same as mentioned above, would
be sufficient enough to keep a person detained for an
indefinite period; Whether in the circumstances
mentioned above, the embargo contained under
Section 37 of the NDPS Act would come in the way of
granting bail; Whether at this stage of judicial
proceeding it would be appropriate to declare that he is
not guilty of the offence. No, never. It is neither
expected nor desirable from a High Court, since doing
so, would mean culmination of the trial at its infancy.
[2024:RJ-JD:42351] (8 of 12) [CRLMB-13040/2024]
14. The present petitioner had been made accused in
this case on the basis of confessional statement of the
principal-accused and to connect the present petitioner
to the alleged recovery. Efforts have also been made to
connect the petitioner with the principal-accused,
however, no connecting evidence has been produced so
as to add direct nexus between the petitioner and
principal accused from whom the contraband was
recovered. In the case at hand, nothing has been
recovered from the present petitioner and no other
legally admissible evidence that could connect the
petitioner with 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 in police
custody 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.
15. Moving on to the impediments contained under
Section 37 of the NDPS Act, it is considered relevant to
refer to the recent ruling passed by Hon'ble the
Supreme Court in Mohd Muslim @ Hussain V. State
(NCT OF DELHI) Vs. State (NCT of Delhi) passed
by Hon'ble the Supreme Court in Special Leave Petition
(Crl.) No.915 of 2023 vide order dated 28.03.2023,
wherein while discussing the parameters of Section 37
of the NDPS Act, it was held that the provision cannot
be construed in a manner that would render the grant
of bail impossible. The accused-appellant in the
aforementioned case was directed to be enlarged on
bail looking to the long period of incarceration. The
[2024:RJ-JD:42351] (9 of 12) [CRLMB-13040/2024]
paragraphs of Mohd. Muslim @ Hussain (supra)
relevant to the present matter are reproduced below:
"18. The conditions which courts have to
be cognizant of are that there are
reasonable grounds for believing that
the accused is "not guilty of such
offence" and that he is not likely to
commit any offence while on bail. What
is meant by "not guilty" when all the
evidence is not before the court? It can
only be a prima facie determination.
That places the court's discretion within
a very narrow margin. Given the
mandate of the general law on bails
(Sections 436, 1 Special Leave Petition
(CRL.) NO(S). 915 of 2023, decided on
28.03.2023. 437 and 439, CrPC) which
classify offences based on their gravity,
and instruct that certain serious crimes
have to be dealt with differently while
considering bail applications, the
additional condition that the court
should be satisfied that the accused
(who is in law presumed to be innocent)
is not guilty, has to be interpreted
reasonably. Further the classification of
offences under Special Acts (NDPS Act,
etc.), which apply over and above the
ordinary bail conditions required to be
assessed by courts, require that the
court records its satisfaction that the
accused might not be guilty of the
offence and that upon release, they are
not likely to commit any offence. These
two conditions have the effect of
overshadowing other conditions. In
[2024:RJ-JD:42351] (10 of 12) [CRLMB-13040/2024]
cases where bail is sought, the court
assesses the material on record such as
the nature of the offence, likelihood of
the accused co-operating with the
investigation, not fleeing from justice:
even in serious offences like murder,
kidnapping, rape, etc. On the other
hand, the court in these cases under
such special Acts, have to address itself
principally on two facts: likely guilt of
the accused and the likelihood of them
not committing any offence upon
release. This court has generally upheld
such conditions on the ground that
liberty of such citizens have to - in cases
when accused of offences enacted under
special laws - be balanced against the
public interest.
19. A plain and literal interpretation of
the conditions under Section 37 (i.e.,
that Court should be satisfied that the
accused is not guilty and would not
commit any offence) would effectively
exclude grant of bail altogether,
resulting in punitive detention and
unsanctioned preventive detention as
well. Therefore, the only manner in
which such special conditions as enacted
under Section 37 can be considered
within constitutional parameters is
where the court is reasonably satisfied
on a prima facie look at the material on
record (whenever the bail application is
made) that the accused is not guilty.
Any other interpretation, would result in
complete denial of the bail to a person
[2024:RJ-JD:42351] (11 of 12) [CRLMB-13040/2024]
accused of offences such as those
enacted under Section 37 of the NDPS
Act."
(Emphasis
Supplied)
16. In Rabi Prakash Vs. State of Odisha passed in
Special leave to Appeal (Crl.) No.(s) 4169/2023,
Hon'ble the Apex Court has again passed an order
dated 13th July, 2023 dealing this issue and has held
that the provisional liberty(bail) overrides the
prescribed impediment in the statute under Section 37
of the NDPS Act as liberty directly hits one of the most
precious fundamental rights envisaged in the
Constitution, that is, the right to life and personal
liberty contained in Article 21.
17. At the stage of hearing of a bail plea pending trial,
although this Court is not supposed to make any
definite opinion or observation with regard to the
discrepancy and legal defect appearing in the case of
prosecution as the same may put a serious dent on the
State's case yet at the same time, this Court can not
shut its eye towards the non-compliance of the
mandatory provision, around a period of one year of
incarceration pending trial, failure of compliance with
the procedure of sampling and seizure and the serious
issue of competence of seizure officer. In the case of
Mohd. Muslim @ Hussain (Supra) it has been
propounded that at the stage of hearing a bail
application under Section 439 Cr.P.C., although it is not
possible to make a definite opinion that they are not
guilty of the alleged crime but for the limited purpose
for the justifiable disposal of the bail application, a
tentative opinion can be formed that the material
brought on record is not sufficient enough to attract the
embargo contained under Section 37 of the NDPS Act.
[2024:RJ-JD:42351] (12 of 12) [CRLMB-13040/2024]
Though specific arguments have not been conveyed but
looking to the fact that the accused is in custody, this
court feels that the accused are not supposed to
establish a case in support of his innocence rather his
detention is required to be justified at the instance of
the prosecution, therefore, this court went deep into
the facts of the case and the manner in which the
entire proceedings have been undertaken. If other
surrounding factors align in consonance with the
statutory stipulations, the personal liberty of an
individual can not encroached upon by keeping him
behind the bars for an indefinite period of time pending
trial. In view of the above, it is deemed suitable to
grant the benefit of bail to the petitioner."
5. In view of the above and considering the fact that there is
high probability that the trial may take long time to conclude,
it is deemed suitable to grant the benefit of bail to the
petitioner in the present matter.
6. Accordingly, the instant bail application under Section 439
Cr.P.C. are allowed and it is ordered that the accused-petitioner
as named in the cause title shall be enlarged on bail provided he
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 his appearance before the court concerned on all
the dates of hearing as and when called upon to do so.
(FARJAND ALI),J
206-divya/-
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