Rajasthan High Court - Jodhpur

Manak Chand vs State Of Rajasthan (2025:Rj-Jd:47269) on 1 November, 2025

Author: Farjand Ali

Bench: Farjand Ali

[2025:RJ-JD:47269]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
 S.B. Criminal Miscellaneous 2nd Bail Application No. 13163/2025

Manak Chand S/o Ghewar Chand, Aged About 37 Years, R/o
Dhaneriya Police Station Chitalwana District Jalore (At Present
Lodged In Sub Jail Bhinmal)
                                                                       ----Petitioner
                                      Versus
State Of Rajasthan, Through Pp
                                                                     ----Respondent


For Petitioner(s)           :     Mr. Kailash Khillery
For Respondent(s)           :     Mr. N.S. Chandawat, AGA



                 HON'BLE MR. JUSTICE FARJAND ALI

Order

01/11/2025

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                  Bhinmal
     3.     District                                  Jalore
     4.     Offences alleged in the FIR               Sections 8/15, 25 of the
                                                      NDPS Act
     5.     Offences added, if any                    Section 8/29 of the NDPS
                                                      Act
     6.     Date of passing of impugned 16.04.2025
            order

2. The facts of the case are that on 07.04.2025, Inspector

Rameshwar Bhati, Police Station Bhinmal, while conducting a

routine patrol and vehicle checking near Sarhad Gazipura,

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intercepted a Swift car bearing registration number GJ-23 BD-

8702. Upon being signaled to stop, the vehicle attempted to evade

the police, prompting a chase. Two individuals alighted from the

car and tried to flee on foot. One of them was apprehended on the

spot, who disclosed his name as Dholaram @ Dhirendra, while the

other, identified as Vikas, managed to escape from the scene.

Upon searching the vehicle, the police recovered six plastic sacks

containing a total of 99 kilograms of illicit narcotic substance,

Doda Post (poppy husk). The accused failed to produce any valid

license or permit authorizing possession or transportation of the

said contraband.

2.1. During investigation, on the basis of the second disclosure

made by accused Dholaram that the present accused petitioner is

involved in the illegal purchase, sale, and transportation of

narcotic substance Doda Post, he has been arraigned in this case

and a case for offences under Sections 8/15 and 29 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 has been

registered against him. His first bail application being SBCRLMB

No.4800/2025 was dismissed as not pressed by this Court vide

order dated 13.06.2025. Hence, the instant application for bail.

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

petitioner is arrested in this 10.04.2025 on the basis of statement

of co-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-

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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. I have heard and considered the submissions made by both

the parties and perused the material available on record.

6. After hearing the arguments advanced by both learned

counsels and upon a comprehensive scrutiny of the material

available on record, it transpires that on 07.04.2025, Inspector

Rameshwar Bhati of Police Station Bhinmal, while engaged in

routine patrolling and vehicle checking near Sarhad Gazipura,

attempted to stop a Swift car bearing registration number GJ-23

BD-8702. However, instead of complying, the vehicle accelerated

and attempted to evade interception, prompting a police chase.

During the pursuit, two individuals disembarked from the vehicle

and fled on foot. One of them was apprehended on the spot and

identified himself as Dholaram @ Dhirendra, whereas the other,

named Vikas, managed to escape from the scene. Upon

conducting a thorough search of the car, the police recovered six

plastic sacks containing approximately 99 kilograms of Doda Post

(poppy husk), a contraband substance under the NDPS Act. The

apprehended individual failed to produce any lawful authorization

or permit for its possession or transportation.

6.1. During the course of investigation, the petitioner was

implicated solely on the basis of a subsequent disclosure

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statement made by co-accused Dholaram. It is on record that

while in lawful police custody, the said co-accused made his first

disclosure statement on 08.04.2025, voluntarily stating that on

07.04.2025, he and Vikas s/o Kisanaram Jangoo Vishnoi, both

residents of Punasa, had purchased 99 kilograms of Doda Post

from Muna @ Prahlad s/o Madhu Jat, resident of Soniyana, Police

Station Bhadesar, District Chittorgarh, and transported the same

in the said Swift car. Significantly, in this initial disclosure

statement, the present petitioner was not named, referred to, or

implicated in any capacity.

6.2. However, on the very next day, i.e., 09.04.2025, the same

co-accused made another disclosure statement before the

Investigating Officer, introducing, for the first time, the name of

the petitioner Manak Chand s/o Ghevar Chand, resident of

Dhaneriya, Police Station Chitalwana, District Jalore. In this

second statement, the co-accused alleged that a portion of the

recovered contraband was to be sold to the petitioner through

Mahendra Dudi s/o Rajuram Bishnoi, resident of Bhalni, and that

he could point out the place where such transactions were

previously conducted.

6.3. The stark divergence between the two disclosure statements

recorded within less than twenty-four hours, wherein the second

version for the first time implicates the petitioner, casts a serious

shadow of doubt on its veracity and voluntariness. The

improvement appears deliberate and evidently tailored to expand

the circle of culpability. The argument advanced on behalf of the

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petitioner that if the first disclosure was truly voluntary, the name

of the petitioner would have surfaced therein carries considerable

merit.

6.4. It is a well-settled proposition that a confessional or

disclosure statement made in police custody has limited

evidentiary value under Section 27 of the Indian Evidence Act, and

only that portion of the statement which leads to the discovery of

a fact can be admissible. In the instant case, there is no material

to suggest that any incriminating recovery or discovery was

effected pursuant to the second disclosure allegedly implicating

the petitioner. The prosecution has also failed to establish any

independent corroborative evidence linking the petitioner to the

alleged transaction or recovery.

6.5. In this backdrop, the subsequent disclosure, being

inconsistent and uncorroborated, appears highly doubtful and

cannot, by itself, constitute a sufficient legal foundation for

continued detention or prosecution of the petitioner. The variance

between the two disclosures, particularly when recorded in quick

succession, prima facie reflects an attempt at embellishment or

afterthought, thereby eroding the evidentiary sanctity of the

second statement to the extent it seeks to involve the petitioner.

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 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 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

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punishable under this Chapter, if committed within India.

A plain reading of the provision above makes it clear that if a

person abetes 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 abetement or in pursuance of the criminal

conspiracy hatched by them.

12. Abetement 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 abetes 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

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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 abetement.

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.

13. What is emanating from the provision of abetement or

conspiracy that there has to be an act of abetement 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 piece of paper, no letter, no evidence regarding presence of

both, the principal accused and the petitioner at a common place

is on record.

14. 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

10.04.2025 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 abeted 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. 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

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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 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

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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)

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