Rajasthan High Court - Jodhpur
Imran Khan vs State Of Rajasthan (2024:Rj-Jd:40045) on 25 September, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:40045]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 10088/2024
Vikas S/o Late Ram Singh, Aged About 25 Years, R/o Haripura,
Tehsil Taranagar, Dist. Churu,raj. (Lodged In Dist. Jail,
Hanumangarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Miscellaneous 2nd Bail Application No. 10089/2024
Deendayal @ Deenu S/o Lichhudas, Aged About 38 Years, R/o
Kailash, P.s. Taranagar, Dist. Churu,raj. (Lodged In Dist. Jail,
Hanumagnarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
S.B. Criminal Miscellaneous 2nd Bail Application No. 10090/2024
Imran Khan S/o Ranjeet Khan, Aged About 37 Years, R/o
Chugani Chhapri, Gram Panchayat Chugani, P.s. Deedwana, Dist.
Nagaur,raj. (Lodged In Dist. Jail, Hanumangarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. B.R. Bishnoi
For Respondent(s) : Mr Rajesh Bhati, AGA
Mr. Ravindra Bhati, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
25/09/2024
[2024:RJ-JD:40045] (2 of 14) [CRLMB-10088/2024]
1. The jurisdiction of this court has been invoked by way of
filing instant bail 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
2. Concerned Police Station Hanumangarh Town
3. District Hanumangarh
4. Offences alleged in the FIR Section 8/15 of the
NDPS Act
5. Offences added, if any Sections 8/25 & 29 of
the NDPS Act
6. Date of passing of impugned 23.07.2024
order
(SBCRLMB No.10088/2024)
6.(a) Date of passing of impugned 24.07.2024
order
(SBCRLM2ndB No.10089/2024)
6.(b) Date of passing of impugned 28.08.2024
order
(SBCRLMB No.10090/2024)
2. It is contended on behalf of the accused-petitioner that no
case for the alleged offences is made out against them and their
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-
petitioners and they have been made an accused based on
conjectures and surmises.
3. Contrary to the submissions of learned counsel for the
petitioner, learned Public Prosecutor opposes the bail applications
and submits that the present case is not fit for enlargement of
accused on bail.
4. I have heard and considered the submissions made by both
the parties and have perused the material available on record.
[2024:RJ-JD:40045] (3 of 14) [CRLMB-10088/2024]
5. Brief facts of the case are that two vehicles (Mahendra Jeep
bearing registration No.RJ05 C 0157 & Swift Desire Car No.RJ31
CA7172) were intercepted by the police and 7 bags weighing 140
Kg and 80 Kg contraband poppy husk came to be recovered from
both the vehicles and therefore, two separate cases were
registered. One case is lodged for recovery of 80 Kg poppy husk
and the other is for 140 Kg poppy husk. Some of the accused are
here for charge of having possession of the contraband (Vikas)
and some (Deendayal and Imran) were made accused for
hatching conspiracy with the principal accused. All are detained
and facing trial and further more time shall be consumed in
culmination of the trial.
6. For the accused (Vikas) who is in custody in relation to
having possession of the contraband, it is argued that there is a
blatant violation of Section 52 A of the NDPS Act; the Standing
Order No.1/1988 issued by the Central Government as well as the
non-compliance of the NDPS Rules regarding search, seizure and
sample. The prolonged incarceration of the petitioners is the prime
argument. For the petitioners who are accused for committing
ofence under Section 29 of the NDPS Act, arguments have been
raised with regard to non-availability of direct or indirect evidence
to show their connectivity either with the accused or with the
recovered contraband. Of course, there is a fetter under Section
37 of the NDPS Act regarding grant of bail to an accused having
illegal possession of commercial quantity of contraband but a
fundamental right of speedy trial to him/them cannot be permitted
to be flouted. When there comes an issue between the statutory
[2024:RJ-JD:40045] (4 of 14) [CRLMB-10088/2024]
provision and the fundamental right then this Court is of the view
that a protection of fundamental right should be given preference
over the statutory bar in granting bail. If the trial is prolonged by
the prosecution for one or the other reason; the personal liberty of
an individual can not be encroached upon by keeping him/them
behind the bars for an indefinite period.
7. There is a force in the defence plea that neither mandatory
provisions have been complied with nor any sample was taken in
accordance with the mandate contained under Section 52A of the
NDPS Act. It is further observed that pending trial, an accused
cannot be kept behind the bars for an unreasonable period.
8. While keeping an accused detained, the opportunity to the
prosecutor to lead evidence can only be given for a reasonable
period. The wider connotation of the phrase 'reasonable period' be
understood to be one year because the case is classified as a
sessions case which would mean that the like cases should
commence and conclude within a session, that is, one year. Even if
an elastic interpretation of the expression 'reasonable period' is
taken on the pretext of certain unavoidable circumstances, then it
can only be doubled and even in that situation, trial has to be
completed within two years while keeping an accused in custody.
Suffice it would to say that for the purpose of determination as to
whether the accused is guilty or not, only a reasonable period can
be awarded to the prosecutor if the accused is behind the bars.
The cases which are classified as session case are purposefully
directed to be heard by senior officer of District Judge Cadre
looking to his experience and rank/grade/post. In criminal
jurisprudence prevalent in India, there is a presumption of
[2024:RJ-JD:40045] (5 of 14) [CRLMB-10088/2024]
innocence working in favour of the accused until he is proven
guilty in the trial. The trial is conducted for the purpose of
affording an opportunity to the prosecutor to prove the charges
and only for the purpose of proving guilt or adducing evidence on
record, an unreasonable period of time cannot be granted as the
same infringes the fundamental rights of an accused which are
otherwise guaranteed by the Constitution of India. While
entertaining a bail plea the court of law is required to take into
account the above-mentioned aspect of the matter as well beside
the gravity of offence and quantum of sentence.
9. 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.
10. 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
[2024:RJ-JD:40045] (6 of 14) [CRLMB-10088/2024]
which were the immediate cause of the discovery
would be legal evidence and not the rest which must
be excised and rejected."
11. 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
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.
12. Simply mentioning in the charge sheet that offence under
Section 29 of the NDPS Act is made out against the petitioners is
not sufficient enough to allow his incarceration until and unless
any material is attached with the charge-sheet showing
involvement/participation of the petitioners. 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
[2024:RJ-JD:40045] (7 of 14) [CRLMB-10088/2024]
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
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.
13. 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--
[2024:RJ-JD:40045] (8 of 14) [CRLMB-10088/2024]
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/they instigate someone to do it or a
person abates the doing of a thing, if he/they 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
[2024:RJ-JD:40045] (9 of 14) [CRLMB-10088/2024]
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.
14. 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/they must be in agreement with the other
persons to do an illegal act.
15. 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
around three years 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 petitioners 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 petitioners are 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
[2024:RJ-JD:40045] (10 of 14) [CRLMB-10088/2024]
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.
16. The present petitioners (Deendayal @ Deenu and Imran) 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 petitioners 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 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.
17. 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
[2024:RJ-JD:40045] (11 of 14) [CRLMB-10088/2024]
(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
might not be guilty of the offence and that upon
[2024:RJ-JD:40045] (12 of 14) [CRLMB-10088/2024]
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."
(Emphasis Supplied)
[2024:RJ-JD:40045] (13 of 14) [CRLMB-10088/2024]
18. 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 three years 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.
[2024:RJ-JD:40045] (14 of 14) [CRLMB-10088/2024]
19. 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.
20. In view of the above, it is deemed suitable to grant the
benefit of bail to the petitioner.s
21. Accordingly, the instant bail applications 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 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
131-Mamta/-
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