Rakesh vs State Of Rajasthan (2024:Rj-Jd:39503)
2024 Latest Caselaw 8285 Raj

Rajasthan High Court - Jodhpur

Rakesh vs State Of Rajasthan (2024:Rj-Jd:39503) on 21 September, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:39364]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
 S.B. Criminal Miscellaneous 3rd Bail Application No. 10158/2024

 Pura Ram S/o Bhinya Ram Jat, Aged About 32 Years, R/o
 Sutharo Ka Bas, Dangiyawas, Police Station Dangiyawas, Dist.
 Jodhpur. (At Present Lodged In Dist. Jail, Chittorgarh)
                                                                          ----Petitioner
                                           Versus
 State Of Rajasthan, Through Pp
                                                                        ----Respondent
                                 CONNECTED WITH


      S.B. Criminal Miscellaneous Bail Application No. 10860/2024

     Rakesh S/o Gopal Meena, Aged About 30 Years, R/o Rajora, Ps
     Hathuniya,     Dist.     Pratapgarh,          Raj.     (Lodged      In   Dist.   Jail
     Chittorgarh)
                                                                          ----Petitioner
                                           Versus
     State Of Rajasthan, Through Pp
                                                                        ----Respondent


For Petitioner(s)                :     Mr. Abhishek Purohit
                                       Mr. Manish Pitaliya
For Respondent(s)                :     Mr. Rajesh Bhati, AGA



                  HON'BLE MR. JUSTICE FARJAND ALI

Order

21/09/2024

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

filing the instant bail applications under Section 439 Cr.P.C. at

the instance of accused-petitioners. The requisite details of

the matter are tabulated herein below:

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S.No. Particulars of the Case

2. Concerned Police Station Nimbahera Sadar

3. District Chittorgarh

4. Offences alleged in the FIR Section 8/15 of the NDPS Act

5. Offences added, if any Section 8/29 of the NDPS Act

6. Date of passing of impugned 18.07.2024 order (SBCRLM 3rd B No.10158/2024)

6.A Date of passing of impugned 02.08.2024 order (SBCRLM 2ndB No.10860/2024)

2. The first and second bail applications of petitioner- Pura Ram

came to be dismissed as withdrawn by this Court vide orders

dated 22.02.2024 & 21.03.2024 passed in SBCRLMB

Nos.13190/2023 & 3568/2024 whereas first bail application

of the petitioner Rakesh was dismissed as not pressed by this

Court vide order dated 27.02.2024 passed in SBCRLMB

No.1373/2024. While dismissing the earlier bail application,

this Court afforded liberty to the petitioner to renew their

prayer for bail after recording the statement of Investigating

Officer. Now, the Investigating Officer has been examined.

Hence, the instant bail applications.

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. Pura Ram and Rakesh

are behind the bars since 05.10.2023 & 20.10.2023. There

are no factors at play in the case at hand that may work

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against grant of bail to the accused-petitioners and they have

been made an accused based on conjectures and surmises.

4. Contrary to the submissions of learned counsel for the

petitioners, learned Public Prosecutor opposes the bail

application and submits that the present case is not fit for

enlargement of accused on bail.

5. I have considered the submissions made by both the parties

and have perused the material available on record.

6. Perusal of the record revealing that on 10.07.2023 near the

Neemach-Chittorgarh Highway, during nakabandi, SHO, PS

Sadar Nimbahera, District Chittorgarh intercepted an Eicher

Truck bearing registration No.GJ34 T 2754. During search 135

Kg poppy husk came to be recovered and its driver Jawahar

Lal got arrested. At the time of arrest of Jawahar Lal stated

nothing with regard to the petitioners after that the

investigation was handed over to another police official

Adhyatam Gautam. On 11.07.2023 at 12:15 p.m. it is

claimed that the principal accused Jawahar Lal made a

disclosure to the police inspector to the effect that he can

show the place wherefrom he procured the poppy husk

without any reference to the petitioners. Again on

12.07.2023, at about 8:00 p.m. he made another disclosure

but did not mention the name of the petitioners. Whereafter,

again on 12.07.2023 at about 11:30 p.m. he made a

disclosure that the recovered contraband was provided to

him by one Rakesh S/o Gopal Meena R/o Rajora, P.S.

Hathunia, District Pratapgarh and he alleged to have told to

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take the policeman at the place wherefrom the contraband

was taken by him. Strangely, at the time of his 4 th disclosure

statement which was recorded on 14.07.2023 at 6:30 p.m. in

which the petitioner-Pura Ram has been targeted regarding

procurement of the contraband poppy husk. There is

substance in the plea raised by Shri Abhishek Purohit, learned

counsel representing petitioner that had it been a "voluntary"

disclosure, if it is, then the principal accused must have

made a mention of the petitioners name in his earlier

disclosure statements but that is not the situation here rather

in the third disclosure statement the name of petitioner

Rakesh was disclosed and whereafter strangely the

accusation has been shifted upon the petitioner at the time

of recording his 4th disclosure. Learned counsel strangely and

fervently argued that if the 3 rd and 4th disclosure statements

are considered as a piece of evidence then why not the first

and second statements be taken as a piece of evidence. It is

also argued that there is no outcome with regard to the first

and second information allegedly provided by the principal

accused to the police official during custody. It is further

argued that until and unless anything is discovered or

recovered in pursuance of the information provided under

Section 27 of the Evidence Act, the mere confession cannot

be taken as a piece of evidence and, therefore, a person

cannot be detained indefinitely on that count. Thus,

detention of an individual based on such tainted disclosure

statement particularly when there are four conflicting

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disclosures; cannot be made for an indefinite period.

Interestingly, except the above disclosure statements 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 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

[2024:RJ-JD:39364] (6 of 16) [CRLMB-10158/2024]

immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected."

9. This Court has seriously pondered over the submission

made at the Bar. The law in this regard is not no more res-

integra that Section 27 of the Evidence Act is an exception to

the Sections 24, 25 & 26 of the Evidence Act and the

exceptional circumstances limits it's applicability to the extent

of the discovery if any, made in pursuance of the information

furnished under Section 27 of the Evidence Act. It is not in

dispute that in three disclosure statements of the principal

accused, the name of the petitioners did not find place and

they have been booked as an accused on the strength of the

3rd and 4th memorandum of statements. The disclosure

statement of the principal accused to a police official while in

police custody whether the same was voluntary or truthful is

a serious question of law and at present this Court feels that

long detention of an accused cannot be made, as the same is

based upon the above typed quality of evidence. Unless the

incriminating article is recovered, the statement indicating

involvement of the petitioners is not sufficient enough to

allow his further incarceration. Only discovery of an object;

the place from where it is produced and so also the

knowledge of the accused regarding the place would be

admissible in evidence, however, in the case at hand, the

contraband and the place from which it was recovered or

procured was already in knowledge of the police officers. The

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submission has a substance that why the 3 rd and 4th

disclosure statements be taken as a piece of evidence and

not the second or fist disclosure statement because both

were made by the principal accused to the same police

officer. 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

[2024:RJ-JD:39364] (8 of 16) [CRLMB-10158/2024]

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 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.

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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 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.

[2024:RJ-JD:39364] (10 of 16) [CRLMB-10158/2024]

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 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 the petitioners on bail who have been detained

from around one year 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

[2024:RJ-JD:39364] (11 of 16) [CRLMB-10158/2024]

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 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 petitioners 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

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police custody on the basis of which the present petitioners

have 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 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

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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 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

[2024:RJ-JD:39364] (14 of 16) [CRLMB-10158/2024]

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."

(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

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mandatory provision, around a 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 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 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

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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 25-Mamta/-

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