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2023 DIGILAW 1210 (RAJ)

Rakesh S/o Shri Kishanlal v. State Of Rajasthan

2023-05-31

FARJAND ALI

body2023
ORDER : 1. The instant bail application has been filed by the petitioner Rakesh S/o Shri Kishanlal under Section 439 Cr.P.C against the order impugned dated passed by learned court below in connection with FIR No.029/2021 registered at Police Station Hathunia, District Pratapgarh for the offences under Sections 8/15 and 29 of NDPS Act. 2. The first bail application came to be dismissed by this Court vide order dated 20.12.2022 with liberty to the petitioner to file afresh after statement of the I.O. is recorded in trial. Now, the I.O. has been examined, hence the present second bail application is filed. 3. Learned counsel for the petitioner submits that a false case has been foisted against the petitioner. He has nothing to do with the alleged offences and no useful purpose would be served by keeping him behind the bars. He submits that there is no legally admissible evidence against the accused-petitioner to connect him with the alleged recovery of poppy husk affected from the principal accused. The alleged disclosure statement was said to have been made by the principal accused Tulsiram, who stated to the police regarding involvement of the petitioner, but except his confession, nothing has been recovered or discovered, therefore, the contents of the said information cannot be taken into evidence as the same is beyond the arena of Section 27 of the Evidence Act. He have been made accused on the strength of confessional statement made by the co-accused during police custody which is otherwise not admissible in evidence by virtue of Sections 25 and 26 of Indian Evidence Act. The said disclosure statement does not come within the ambit of Section 27 of Indian Evidence Act. It is the admitted case of the prosecution that neither the petitioner was found present at the crime scene nor any incriminating material or contraband was recovered from his possession. 4. He further submits that the bail application of co-accused persons namely Mahesh, Niranjan Kumar, Rooplal, Kanwarlal and Laxminarayan have been allowed by a co-ordinate Bench of this Court; the case of the present petitioner in no manner distinguishable from his case. Thus, on the ground of parity, he has right to be released on bail. 4. He further submits that the bail application of co-accused persons namely Mahesh, Niranjan Kumar, Rooplal, Kanwarlal and Laxminarayan have been allowed by a co-ordinate Bench of this Court; the case of the present petitioner in no manner distinguishable from his case. Thus, on the ground of parity, he has right to be released on bail. He submits that after investigation, charge sheet has been filed and the entire charge sheet does not have an iota of evidence against the petitioner except the aforesaid confession, for which, further incarceration of the petitioner cannot be allowed. Since nothing is there on record from which involvement of the accused can be presumed, therefore, the condition under Section 37 of the NDPS Act do not come in way of releasing the petitioners on bail. 5. Per contra, learned Public Prosecutor opposed the bail application on the ground that contraband poppy husk weighing 383 Kilograms was recovered at the instance of principal-accused persons which was recovered from the car of petitioner. The recovered contraband are way above the demarcated commercial quantity and therefore, in view of the bar contained under Section 37 of NDPS Act, no case of bail is made out. 6. Heard. Perused the material available on record. 7. It is alleged that the said principal-accused disclosed this fact to the I.O. that the present petitioner was driving the pickup and upon seeing the police he fled away from the spot. Except the fact that the petitioner is the registered owner of the vehicle and there is an incriminating confessional statement of principal-accused, no other material has been collected by the agency to show any nexus between the petitioner and the alleged recovery. The Investigating Officer Dr. Naveen Kumar has been examined in trial, wherein in his cross-examination, he candidly admits that besides the confessional statement in the form of disclosure statement and the interrogation note, he could not find or collect any direct or indirect evidence, which can show nexus between the principal accused and the petitioner. He candidly admits that no information under Section 27 of the Indian Evidence Act having incriminating material against the petitioner is available on record. 8. 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. He candidly admits that no information under Section 27 of the Indian Evidence Act having incriminating material against the petitioner is available on record. 8. 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. 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. 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. 9. The Privy Council in the case of Pulukuri Kotayya Vs. Emperor reported in AIR (1947) PC 67 discussed the provision stipulated under Section 27 of the Indian Evidence Act. The relevant portion of the judgment is reproduced herein as under: "It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A'., these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 10. The observations of the Privy Counsel in the case of Pulukuri Kotayya (supra) stand accepted by Hon’ble the Supreme Court in the case of Prabhoo Vs. The observations of the Privy Counsel in the case of Pulukuri Kotayya (supra) stand accepted by Hon’ble the Supreme Court in the case of Prabhoo Vs. State of Uttar Pradesh, reported in AIR (1963) SC 113 and then, it has been reiterated/referred in a catena of legal pronouncements. 11. In the case of Navaneethakrishnan Vs. The State, reported in AIR 2018 SC 2027 , Hon’ble the Apex Court has held as under: “Section 27 of Evidence Act is applicable only if confessional statement leads to discovery of some new fact. Relevance is limited as relates distinctly to fact thereby discovered.” 12. 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.” 13. In this regard, we may refer to Sangappa Basalingappa Rabasetty Versus State of Karnataka reported in Criminal Appeal No.37/1982 where in it was held as under:- “The confessions made to the police are irrelevant and inadmissible in evidence under Sections 24, 25 and 26 of the Evidence Act. Section 27 makes a departure from the principle laid down in Sections 24 and 26 of the Evidence Act. When the information contained in the statements (whether amounting to a confession or not)made by an accused person in police custody is confirmed by the finding of some object or fact, the danger disappears; for the discovery of the stolen goods, the instrument of crime, the dead body, the clothes which the deceased was wearing or any other material thing, which are capable of being perceived by the senses demonstrates conclusively that these portions at least of the confession cannot have been false. In such a case so much of the information given by the accused as relates distinctly to the fact thereby discovered becomes relevant under Section 27. In such a case so much of the information given by the accused as relates distinctly to the fact thereby discovered becomes relevant under Section 27. The Section is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence. It can be seen that simply discovery of fact as a result of information from accused does not make it admissible unless its relevancy is established by other evidence showing the connection between the fact discovered and the offence charged and the accused. Section 27 involves the principle of confirmation by subsequent facts. There appears to be a distinction between a statement that “it is lying hid or buried at a certain place” and “I hid or buried it at a certain place”. For instance, in the case of a dead body, a statement of the latter kind involves a confession of concealing evidence or conniving at such being done; or the statement” I stole and buried or concealed” or “the stolen property was hid at a certain place” includes a confession of theft and it might also be hit by Sections 25 or 26. In the application of the rule it should never be lost sight of that part of a statement wherein the accused admits his guilt in regard to an offence is inadmissible as it does not in any sense relate distinctly to the discovery of any fact.” 14. It can be manifested from a simple reading of the 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. 15. 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. 15. There is no contact in between the petitioner and the co-accused from whom the recovery has been effected as per the material available on record, thus, a safe inference can be drawn that there is no direct nexus between the petitioner and the recovery effected at the instance of other co-accused. Indisputably, no call recording, text or chat of the petitioner with the principal accused or the other co-accused is available on record. The entire case wholly and mainly depends upon the confessional statement of the co-accused. 16. As far as the question of fetter contained under Section 37 of NDPS Act is concerned this court is aptly guided by a recent ruling titled Mohd Muslim @ Hussain V. State (NCT OF DELHI) in Special Leave Petition (CRL.) NO(S). 915 of 2023 order dated 28.03.2023, Hon’ble the Supreme Court has discussed Section 37 of the NDPS Act in detail and has allowed the accused in that matter to be released on bail while holding that the impediment contained under Section 37 is not a bar to grant of bail in cases where there is undue delay in conclusion of trial. The paragraph of the afore-said judgment relevant to the present matter is 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, 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.” 17. Considering the arguments advanced by the counsel for the parties and looking to the overall facts and circumstances of the case, since in my view, the bar contained under Section 37 of the NDPS Act is not attracted in this case as there seems to be no reasonable ground to believe participation of the present-petitioner in the alleged crime this court deems it just and proper to enlarge the accused-petitioner on bail. 18. Having regard to the totality of facts and circumstances as available on record and upon a consideration of the arguments advanced, at this stage of infancy of trial, this Court refrains from passing any comments over the nature of accusation and the quality of evidence yet it is of the opinion that the petitioner deserves to be enlarged on bail. 19. It is to be made clear, in unambiguous terms, that the effect of this order is limited to the justifiable disposal of the present bail application and shall not influence the learned trial judge in reaching a conclusion at the culmination of the trial. 20. 19. It is to be made clear, in unambiguous terms, that the effect of this order is limited to the justifiable disposal of the present bail application and shall not influence the learned trial judge in reaching a conclusion at the culmination of the trial. 20. Accordingly, the second bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner Rakesh S/o Shri Kishanlal 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.