Rajasthan High Court - Jodhpur

Ramesh vs State Of Rajasthan (2025:Rj-Jd:14992) on 20 March, 2025

Author: Kuldeep Mathur

Bench: Kuldeep Mathur

[2025:RJ-JD:14992]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                          JODHPUR
       S.B. Criminal Miscellaneous Bail Application No. 1167/2025

Ramesh        S/o    Jagdish,     Aged      About       28      Years,      R/o   Village
Mithdiya,p.s.bajju, Dist Bikaner (At Present Lodged In Dist Jail
Bikaner)
                                                                         ----Petitioner
                                       Versus
State Of Rajasthan, Through Pp
                                                                      ----Respondent


For Petitioner(s)             :    Mr. Ratna Ram
For Respondent(s)             :    Mr. Urja Ram Kalbi, PP


              HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

20/03/2025

1. This application for bail under Section 483 BNSS has been

filed by the petitioner who has been arrested in connection with

F.I.R. No.77/2022 registered at Police Station Chhatargarh,

District Bikaner for offences under Sections 8/15 & 29 of NDPS

Act.

2. Heard learned counsel for the petitioner and learned Public

Prosecutor. Perused the material available on record.

3. Learned counsel for the petitioner submitted that co-accused

Poonam Chand @ Prakash Chand has already been enlarged on

bail by a co-ordinate Bench of this Court vide order dated

30.08.2024 passed in Criminal Misc. 2nd Bail Application

No.6710/2024. Learned counsel for the petitioner further

submitted that the case of present petitioner is not distinguishable

from that of co-accused Poonam Chand @ Prakash Chand, who

has already been enlarged on bail. The petitioner is in judicial

[2025:RJ-JD:14992] (2 of 9) [CRLMB-1167/2025]

custody and the trial of the case will take sufficiently long time,

therefore, the benefit of bail should be granted to the accused-

petitioner.

4. Per Contra, learned Public Prosecutor has opposed the bail

application and submitted that looking to the seriousness of

allegations levelled against the present petitioner, he does not

deserve to be enlarged on bail. However, he was not in a position

to refute the fact that co-accused has already been enlarged on

bail by this Court.

5. Heard learned counsel for the parties and perused the order

dated 30.08.2024 passed by the co-ordinate Bench of this Court.

The operative portion order dated 30.08.2024 is reproduced

hereinbelow for ready reference:-

"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 accused-petitioner and he has been made an accused based on conjectures and surmises.

3. Heard learned counsel for the petitioner and the learned Public Prosecutor as well as gone through the record of the case.

4. Bereft of elaborate details, briefly stated the facts of the case are germane for disposal of the instant bail application would be that the police team of Chhatargarh, District Bikaner made an interception of a vehicle on 11.06.2022 in which two persons namely, Vishna Ram and Shiv Pratap were sitting. Looking to their suspicious activities when due process was adopted in accordance with the mandate of NDPS Act, search of the vehicle was affected and around 160 kilogram poppy husk came to be recovered from their possession. After search and seizure when initially they were negated, it was disclosed that the vehicle belonged to one Rauf Khan and they procured the contraband from the petitioner. The two accused persons named above were detained and after usual investigation, they were arrested. During the course of the investigation, the petitioner was apprehended for the charge that he either abetted or conspired together with the aforementioned two accused persons for procurement of the contraband. After

[2025:RJ-JD:14992] (3 of 9) [CRLMB-1167/2025]

investigation, charge-sheet has been filed, charges have been framed and some of the prosecution witnesses have been examined. The co-accused Vikram @ Vikas @ Chhutia has been granted bail by this Court vide order dated 14.12.2023 in S.B. Criminal Misc. Bail Application No.10899/2023.

5. After going through the entire material as made available to this Court, more particularly, the statement of prosecution witness No.2 - Vinod Kumar who has been examined in the trial as an Investigating Officer; it transpired that there is a substance in the defence plea that no legally admissible evidence is available on record so as to @@ his further incarceration. Admittedly, the petitioner was not present when the contraband was recovered from two persons, namely, Vishna Ram and Shiv Pratap. Nothing has been recovered from the petitioner. He is not the owner and occupier of the vehicle in which the contraband was transported. He has been made accused in this case solely and majorly on the basis of confessional statement made by principal accused to the Police Officer while they were in police custody.

6. Except the above disclosure which is mere confession in nature; there is nothing on record so as to substantiate the charge that either the petitioner was a party to abetment or conspiracy with the principal accused persons. For a moment, if the contention made by principal accused to a Police Officer is removed from the file, there remains nothing to fortify the charge under Section 29 of the NDPS Act. The P.W.-2 (Vinod Kumar) who investigated the matter has candidly admitted in cross-examination that no mobile phone was recovered from the petitioner. He also admitted that the CDR and tower location and details of the confession of the petitioner and the other accused Vishna Ram were not obtained by him. He further admitted that he did not conduct investigation on this point as to with which phone number the petitioner was connected with the other accused person Vishna Ram. He candidly admitted that he was not able to say that what were the details of conversation between the petitioner and the principal accused.

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

[2025:RJ-JD:14992] (4 of 9) [CRLMB-1167/2025]

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 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 punishable under this Chapter, if committed within India.

[2025:RJ-JD:14992] (5 of 9) [CRLMB-1167/2025]

11. 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.

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.

12. 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 abetement was committed. The other aspect of the provision is that if a person, while abeting 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.]

13. 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

[2025:RJ-JD:14992] (6 of 9) [CRLMB-1167/2025]

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.

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 19.04.2023 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. 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 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.

16. 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

[2025:RJ-JD:14992] (7 of 9) [CRLMB-1167/2025]

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.

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 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

[2025:RJ-JD:14992] (8 of 9) [CRLMB-1167/2025]

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)

17. 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.

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, more than one and a half 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

[2025:RJ-JD:14992] (9 of 9) [CRLMB-1167/2025]

trial. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioner.

19. Accordingly, the instant bail application under Section 439 Cr.P.C. is 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.

6. Having considered the rival submissions, facts and

circumstances of the case, this Court prima facie finds that the

case of the present petitioner is not distinguishable from that of

the co-accused Poonam Chand @ Prakash Chand, who has already

been enlarged on bail by this Court. Thus, without expressing any

opinion on merits/demerits of the case, this Court is of the opinion

that the bail application filed by the petitioner deserves to be

accepted.

7. Accordingly, the second bail application under Section 483

BNSS is allowed and it is ordered that the accused-petitioner-

Ramesh S/o Jagdish shall be enlarged on bail in connection with

F.I.R. No.77/2022 registered at Police Station Chhatargarh,