JUDGMENT : 1. These applications for bail under Section 439 CrPC have been filed by petitioners who were arrested in connection with FIR No.262/2021 registered at Police Station Pachpadra, District District Barmer, for offence under Sections 457, 380, 120B IPC read with Section 8/15 of the NDPS Act and Section 3 of PDPP Act. 2. Since all the three bail applications are emanating from the same FIR (No.62/2021), with the consent of the parties, they are being decided by this common order. 3. The matter has a chequered history. In order to unfold layers of the present case, this Court is required to date back to two other cases, in FIR No.106/2019 and 177/2019 lodged on 04.06.2019 and 23.08.2019 respectively at Pachpadra Police Station, both for offence under Section 8/15 of the NDPS Act. In said cases, 10 quintal of Poppy Husk was recovered cumulatively and was kept in the storage house of the Pachpadra Police Station. Accordingly, the said contraband was lying in the storage house since it was recovered. 4. Eventually, the charge of the storage house of the Police Station Pachpadra was handed over by one Head Constable to the other Head Constable. While taking the charge, the taking over Head Constable in the course of checking the stored items, found that the bags containing 10 quintal of Poppy Husk, recovered in the aforesaid cases, were missing from the storage house. On the same day i.e. on 23.04.2021, this finding of theft from the storage house was mentioned as report No.20 in the Roznamcha of the Police Station Pachpadra, however, no separate case was registered in this regard. 5. Following this incident, the S.P. Barmer initiated an inquiry, wherein an inquiry report dated 01.09.2021 was made by the Deputy S.P. Balotra, as per which it came to be known that the contraband was lying in the storage house of the outpost Pachpadra Police Station, some unknown persons have broken the backside window of the said room and have stolen the property containing contraband weighing 10 quintal. 6. On the basis of aforesaid inquiry report, an FIR bearing No.262/2021 dated 11.09.2021 came to be lodged under Sections 457, 380 IPC. Interestingly, the investigation in the said FIR was commenced only when one fine day i.e. on 24.09.2021, the S.P. Barmer came across a Press Note on WhatsApp. 6. On the basis of aforesaid inquiry report, an FIR bearing No.262/2021 dated 11.09.2021 came to be lodged under Sections 457, 380 IPC. Interestingly, the investigation in the said FIR was commenced only when one fine day i.e. on 24.09.2021, the S.P. Barmer came across a Press Note on WhatsApp. As per said Press Note, he came to realize that another offence of theft has occurred, which came to be lodged at the Police Station Shergarh wherein the delinquent, namely Shiv Prakash, is the accused person, who was in custody in connection with stealing of electrical items. This incident said to have occurred in the month of January 2021 and the delinquent had allegedly confessed before the investigating agency of the Police Station Shergarh about committing the offence of theft of Poppy Husk from Pachpadra outpost and that he has broken window of the Police chowki Pachpadra for 7-8 times. 7. There is nothing new in this aspect of which this Court takes special note that maximum offences of theft are occurred by trespassing without which an offence of theft can not be committed, however, the investigating agency hurriedly detained the delinquent Shiv Prakash and implicated him in the present matter. During the interrogation, the investigating agency has claimed that the delinquent Shiv Prakash has confessed his crime and gave information that he along with 10 other persons had stolen 10 quintal contraband from the storage house of the Police Station Pachpadra. It is noteworthy that the confession was made by him while in Police custody. 8. On the basis of his confession taken in Police custody and the information received under Section 27 of the Evidence Act, the investigating agency has filed a charge-sheet for offences under Sections 457, 380, 120B IPC, Section 3 of the PDPP Act and Sections 8/15, 29 of the NDPS Act, against 10 accused persons including Shiv Prakash and the present petitioners for offence under Section 411 IPC and Section 8/15, 29 of the NDPS Act. It would be worthwhile to mention here that the bags, packets, wrapper or any seal-chit paper has not been recovered so as to show nexus that the above mentioned 7 kilograms 800 grams Poppy Husk was the same contraband which was recovered in the year 2019 in aforesaid NDPS Case. 9. It would be worthwhile to mention here that the bags, packets, wrapper or any seal-chit paper has not been recovered so as to show nexus that the above mentioned 7 kilograms 800 grams Poppy Husk was the same contraband which was recovered in the year 2019 in aforesaid NDPS Case. 9. As per the said charge-sheet, the investigating agency has allegedly recovered 3 Kilogram 200 grams of Poppy Husk from accused Raval Ram and 4 Kilogram 600 gram of Poppy Husk from accused Bhoma Ram, on 20.12.2021, only on account that the said contraband was in their possession without having any license. At the time of interrogation, the accused persons have allegedly confessed that the rest of the contraband, apart from the recovered contraband of 3 Kilo 200 grams and 4 kilo 600 grams, had been sold. 10. The investigating agency did not even bother to find out as to whom the balance contraband had been sold, or where and in what manner the same has been disposed. Not only that, no effort has been made by the investigating agency to show that the contraband stolen from the storage house of Police Station Pachpadra and the contraband recovered from the accused persons Bhoma Ram and Rawal Ram, do match. 11. In its repeated attempts of investigation, handicapped with incongruities, the investigating agency did not stop here and attained the audacity to even make the news article as well the said Press Note a part of the Case Diary and no other evidence has been produced to substantiate the connection of the accused Shiv Prakash with the theft of 10 quintal contraband except the Press Note, which deals with the offence of theft lodged at the Police Station Shergarh. 12. This Court is of the view that the investigating agency has tried hard to connect the offender of theft lodged at Shergarh Police Station and the theft of contraband lodged at the Pachpadra Police Station, on the basis of two aspects; firstly, the manner in which both the thefts have occurred i.e. the presumption that the theft was committed by breaking the window and secondly, the confession made by delinquent Shiv Prakash about his involvement in the theft lodged at Shergarh Police Station. 13. 13. This Court would like to deal with both the aspects on the basis of which the investigating agency has relied upon i.e. the presumption of connecting the offender of theft with the possession of stolen goods from the accused persons and the confession in Police custody. Quite fascinatingly, the investigating agency, while making a presumption against the accused Rawal Ram and Bhoma Ram seems to have miserably forgotten that the ‘presumption’ as per Section 114 of the Indian Evidence Act, while connecting the offender of theft with the possession of stolen goods, is available and can be applied only to the extent that when the offender is found in possession of the stolen goods soon after the theft, unless the contrary is proved. 14. However, in the present case, the commission of theft of 10 quintal contraband was found out on 23.04.2021 and the Poppy Husk in below commercial quantity i.e. 3 kilo 200 grams and 4 kilo 600 grams was recovered, separately, from Bhoma Ram and Rawal Ram, on 20.12.2021. It is significant to mention that the commission of the theft at Pachpadra Police Station was found out on 23.04.2021, meaning thereby that it cannot still be told as to when did the actual commission of theft occur. Even assuming that the theft of 10 quintal contraband has occurred on 23.04.2021, at least this much is clear that there has been a gap of approximately 8 months between the commission of theft and the recovery of the stolen contraband from possession of the accused persons Bhoma Ram and Rawal Ram. It is case of the prosecution that the theft was committed on 7-8 different occasions. 15. Therefore, in the absence of any other evidence, direct, indirect, circumstantial or even documentary, the ‘presumption’ as has been discussed above, which has been one of the basis to implicate the accused persons, can not be made available to the investigating agency as the accused persons could have been simply connected with the theft of contraband only if they were found in possession of the stolen goods soon after the theft. 16. 16. As regard confession in judicial custody is concerned, it is a well settled law {Ram Singh Vs Central Bureau of Narcotics: AIR 2011 SC 2490 } that Section 25 of the Indian Evidence Act makes a confessional statement of the accused before Police officers inadmissible in evidence, which can not be brought on record by prosecution to obtain conviction. Further, statements made in policy custody are considered to be unreliable unless they have been subjected to cross examination or judicial scrutiny {Sehr Vs State of Karnataka: AIR 2010 SC 1974 }. Moreover, the confession made while in custody is not to be proved against the accused as the provisions of Section 25 and 26 of Indian Evidence Act do not permit it unless it is made before a Magistrate {Kamal Kishore Vs State (Delhi Administration): (1977) 2 Crimes 169 (Del)}. 17. On this facet, this Court would like to refer to what Stephen had to say on page 442 of the book authored by him titled ‘History of Criminal Law’ and the same has been quoted by Vinod Chandran, J. in Thadiyantevedia Nazeer & Anr Vs State of Kerala: Crl. Appeal Nos.1699 & 1914 of 2011, which follows: “If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of laborious investigation and prolonged examination of other men, materials and documents? It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law "to sit comfortably in the shade rubbing red pepper into a poor devil's eyes rather than go about in the sun hunting up evidence.” 18. It has been further held in State of Bombay Vs Kathu Kalu Oghad: (1962) 3 SCR 10 that-“confession may have an element of truth in it but it fails to persuade the Judges, in travelling the distance between ‘may be true’ and ‘must be true’ the whole of which distance, as has been held in Sarwan Singh vs. State of Punjab: 1957 SCR 953 , must be covered by ‘legal, reliable and unimpeachable evidence’. 19. Looking at the facts and circumstances evolved while conducting this entire episode of so-called thorough and diligent exercise in the name of investigation, as has been dramatically performed by the investigating agency, the same commands deprecation, strong condemnation and stark aversion from this Court. 19. Looking at the facts and circumstances evolved while conducting this entire episode of so-called thorough and diligent exercise in the name of investigation, as has been dramatically performed by the investigating agency, the same commands deprecation, strong condemnation and stark aversion from this Court. Further, this Court raises questions on each of the action which has been taken by the investigating agency without application of mind and the same can not be said to have acted within four corners of the law. 20. It is relevant to mention here that Section 52 of the NDPS Act deals with the procedure for the preparation of an inventory of the seized material by the competent officer, certification of the correctness of the inventory by the Magistrate, drawing of samples of such seized material in the presence of the Magistrate, and taking of photographs in the presence of such Magistrate of the substance seized and certifying such photographs to be true. The questions, being majorly governed by Section 52-A of the NDPS Act, are, as follows: i) Why an inventory to store such huge quantity of contraband was not prepared as has been mandated in view of Section 52-A of NDPS Act? ii) Why an exclusive storage of seized materials, equipped with vaults and double locking system, was not made, in view of Standing Order No.1 of 1989, to ensure proper security against theft, pilferage or replacement of the seized drugs? iii) Whether the bags carrying 10 quintal of Poppy Husk contained description, quality, quantity, mode of packing, marks, numbers of such identifying particulars (seal and paper-chit) or the packing in which they were packed? iv) Whether an effort was made by the prosecution as regard the relevancy of particulars as mentioned above with the contraband articles recovered from accused persons Bhoma Ram and Rawal Ram? v) Whether a sample of stolen contraband of 10 quintal was taken by the concerned Police Officer at the time of effecting recovery? If yes, whether the said sample was made to have matched with each of the portion of recovered contraband i.e. 3 kilo 200 grams and 4 kilo 600 grams? vi) Whether any testimony was taken by any spot witnesses while effecting recovery from the accused persons? If yes, whether the said sample was made to have matched with each of the portion of recovered contraband i.e. 3 kilo 200 grams and 4 kilo 600 grams? vi) Whether any testimony was taken by any spot witnesses while effecting recovery from the accused persons? vii) Whether the aforementioned seized contraband articles (in below commercial quantity) were produced before the concerned Magistrate/Special Judge before jumping to the conclusion that the same matched with the contraband that was stolen? viii) Why only 7 kilo 800 grams of contraband was seized and where is the rest of the contraband and why there has been no plausible explanation given by the investigating agency to that effect? ix) Why not a single step was taken by investigating agency in pursuance of finding out the said rest of the contraband articles and the manner in which it could have been disposed, destructed, distributed/sold? x) Most importantly, how did the investigating agency arrive at the aspect that the portion of contraband consisting of 7 kilo 800 grams was taken from the contraband stolen of 10 quintal, unless any marked container is recovered? xi) The loose contraband in below commercial quantity is any way available in the market then on what basis can it be assumed that the portion of said contraband could be from the lot of the stolen contraband of 10 quintal? xii) The discovery of theft was made on 23.04.2021 and the FIR was lodged 11.09.2021, why delay? What were the steps taken between 23.04.2021 and 11.09.2021? xiii) Whether or not the missing of 10 kg Poppy Husk would put adverse effect on those NDPS cases? 21. Unfortunately, the answers of the above mentioned questions could not be found in the charge-sheet and in the statements made by the investigating agency. In this scenario, this Court observes that since the present matter is of a serious economic offence, abundant caution ought to have been taken by the prosecution in establishing direct nexus between the recovered contraband of 7 kilo 800 grams and the stolen contraband of 10 quintal. In the absence of same, this Court expresses its anguish over the lackadaisical approach in dealing with the present case. 22. In the absence of same, this Court expresses its anguish over the lackadaisical approach in dealing with the present case. 22. Be that as it may, for the present bail applications, the material placed before this Court, if taken in its entirety, can substantiate the allegation of recovery of 3 kilo 200 grams Poppy Husk from accused Rawal Ram and 4 kilo 600 grams Poppy Husk from the accused Bhoma Ram, both from different places. Even if the cumulative weight is considered, it is well below the commercial quantity, therefore, the embargo contained in Section 37 of the NDPS Act would not attract. 23. Since the charge-sheet has been filed, therefore, looking to the totality of the facts and circumstances of the case, at this stage I do not deem it appropriate to allow further incarceration of the accused applicants. Therefore, the aforesaid three bail applications under Sec.439 CrPC are allowed. It is ordered that the aforesaid accused-petitioners-1) Goverdhan Ram Nephew/o Sh. Pancha Ram, 2) Rawal Ram S/o Budharam, 3) Suresh S/o Telaram, 4) Bhoma Ram S/o Mohan Ram and 5) Kailash S/o Chutara Ram, arrested in connection with FIR No.62/2021 registered at Police Station Pachpadra, District Barmer shall be released on bail, if not wanted in any other case, provided each of them furnishes a personal bond of Rs.50,000/-(rupees Fifty Thousand) and two sureties of Rs.25,000/-(rupees Twenty Five Thousand) each, to the satisfaction of learned trial court, for their appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial. 24. It is made clear in unambiguous and lucid terms that the observations made herein about niceties of the matter are limited and are sine qua non to adjudicate the bail plea and the same shall not influence the trial judge. 25. Before parting, this Court is constrained to give direction to the Director General of Police, Rajasthan, Jaipur to look into the matter and do all the needful as per his wisdom.