Rakesh vs State Of Rajasthan (2024:Rj-Jd:39354)
2024 Latest Caselaw 8223 Raj

Rajasthan High Court - Jodhpur

Rakesh vs State Of Rajasthan (2024:Rj-Jd:39354) on 20 September, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:39354]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
     S.B. Criminal Miscellaneous Bail Application No. 11190/2024

Rakesh S/o Shri Mangilal, Aged About 36 Years, R/o Magreda,
Police Station Rathanjana, District Pratapgarh (Raj) (Presently
Lodged In District Jail Pratapgarh)
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan, Through Pp
                                                                    ----Respondent


For Petitioner(s)            :     Mr. Ashok Khillery
For Respondent(s)            :     Mr. Rajesh Bhati, AGA



                 HON'BLE MR. JUSTICE FARJAND ALI

Order

20/09/2024

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

filing the instant bail 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                   Rathanjana
     3.     District                                   Pratapgarh
     4.     Offences alleged in the FIR                Section 8/18 of the NDPS
                                                       Act
     5.     Offences added, if any                     Section 8/29 of the NDPS
                                                       Act
     6.     Date of passing of impugned 20.08.2024
            order

2. In nutshell the facts of the case are that on 26.04.2023 shri

Devilal, SHO Rathanjana, Pratapnagar along with him team

during patrolling upon suspicion, intercepted a Motorcycle and

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interrogated the driver, who disclosed his name as Om Prakash

and during search, three plastic bags weighing 3kg 800 gms

opium was recovered from the dickey of the vehicle. Whereafter,

the accused Om Prakash was arrested and during investigation, he

stated that he purchased the said contraband from one Rakesh. A

case under Section 8/18 of the NDPS Act was registered against

the accused Om Prakash.

3. It is contended on behalf of the accused-petitioner that the

petitioner is arrested in this 08.07.2024 on the basis of statement

of principal accused, however he was not present at the spot thus,

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 accused-

petitioner and he has been made an 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 present case is not fit for enlargement of

accused on bail.

5. Have considered the submissions made by both the parties

and have perused the material available on record.

6. Perusal of the record revealing that the petitioner is behind

the bars in this case since 08.07.2024. 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 statement made by the

co-accused Om Prakash. Interestingly, on 27.04.2024 when the

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accused Om Prakash was again interrogated by the Police

Inspector Deepak Kumar wherein he made a disclosure statement

that he may confirm the place wherefrom he procure the opium

and to whom he obtained, however in the said disclosure he did

not disclose the name of the petitioner. The site verification memo

dated 30.04.2023 has a significant development by stating that

the accused Om Prakash told the police officials regarding

procurement of the opium to him by the petitioner Rakesh. In

view of the significant improvement as well as in view of the

disclosure statement dated 27.04.2023 in which the petitioner's

name does not find place, is a serious defect of investigation

which can easily be traced out. It is pertinent to note here that

besides the above tainted evidence, there is no other material to

show or suggest the connectivity of the petitioner either with the

contraband or with the principal accused. It is a bizarre situation.

The manipulation at the hands of investigating agency cannot be

ruled out. Detention of an individual based on such tainted

disclosure statement particularly when there are two conflicting

disclosures; cannot be made for an indefinite period. Interestingly,

except the above two contrast disclosure statement there is

nothing on record to either corroborate or connect the petitioner

with the alleged transportation or recovery of the contraband.

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

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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.

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

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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-

(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

[2024:RJ-JD:39354] (6 of 13) [CRLMB-11190/2024]

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 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

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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 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

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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

08.07.2024 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. Had it been the case that soon after or at the

time of recovery of the contraband; the principal accused made a

disclosure regarding involvement/participation of the accused, if

the same was disclosed by him, then the fact situation may be

different. But strangely, here in this case, nowhere the principal

accused from whom the contraband got recovered ever named

the petitioner. 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

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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.

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 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 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)

[2024:RJ-JD:39354] (10 of 13) [CRLMB-11190/2024]

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 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

[2024:RJ-JD:39354] (11 of 13) [CRLMB-11190/2024]

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 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 accused of offences such as those enacted under Section 37 of the NDPS Act."

[2024:RJ-JD:39354] (12 of 13) [CRLMB-11190/2024]

(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, more than two months 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 applications, 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. Though

specific arguments have not been conveyed but looking to the

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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.

18. 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

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 201-Mamta/-

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