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2023 DIGILAW 707 (RAJ)

Kamlesh S/o Shri Mangilal v. State of Rajasthan

2023-03-22

FARJAND ALI

body2023
ORDER : 1. The instant bail applications have been filed by the petitioners Kamlesh S/o Shri Mangilal and Dilip S/o Shri Prahlad under Section 439 Cr.P.C against the order impugned dated 07.01.2023 passed by learned court below in connection with FIR No.01/2022 registered at Police Station Rathanjana, District Pratapgarh for the offence(s) under Sections 8/15 & 29 of NDPS Act. 2. Learned counsel for the petitioners submits that a false case have been foisted against the petitioner. They have nothing to do with the alleged offences and no useful purpose would be served by keeping them behind the bars. It is the admitted case of the prosecution that neither the petitioners were found present at the crime scene nor any incriminating material or contraband was recovered from their possession. They 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 has been propounded by the Privy Council in the case of Pulukuri Kottaya & Ors. Vs. Emperor ( AIR 1947 PC 67 ) that since nothing was discovered or recovered, the disclosure statement made while in custody which distinctly connects the accused-petitioners with the commission of the crime cannot betaken as an admissible piece of evidence. 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. 3. Per contra, learned Public Prosecutor opposed the bail applications on the ground that the recovered contraband weighed 2303 kilograms in total and that is way above the commercial quantity demarcated for Poppy husk. 4. Heard and perused the material available on record. The seizing officer during his cross examination candidly admitted that during the investigation, the agency did not come across any evidence, direct or indirect, to show the connection of the present accused-petitioners with the other co-accused. The names of the present petitioners do not find any mention in the information received under Section 42 of the NDPS Act. The seizing officer during his cross examination candidly admitted that during the investigation, the agency did not come across any evidence, direct or indirect, to show the connection of the present accused-petitioners with the other co-accused. The names of the present petitioners do not find any mention in the information received under Section 42 of the NDPS Act. He further admitted that as per the seizure memo, parchakayami and spot documents as well as the statements of witnesses available on spot and statements of members of the seizing team, nothing has come on record regarding the alleged involvement of the petitioners in the present case. During investigation, no witness was found who had seen accused Vinod, Kmalesh, Dilip and Jitendra Singh together, exchanging the contraband. 5. 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.” 6. 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. 7 This court is of the view that at least there must be some corroborations or support to verify the confession made by the principle accused to the Police Officer while in lockup. 7 This court is of the view that at least there must be some corroborations or support to verify the confession made by the principle accused to the Police Officer while in lockup. No one would have come to the witness box to establish the above fact except the IO who can say that co-accused made a confession before him. 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. 8. The statement recorded under section 67 of NDPS Act does not reveal or disclose any new thing except the confession of committing offence. Therefore in view of the judgment passed by Hon’ble the Supreme Court in the case of Tofan Singh Vs. State of Tamil Nadu reported in AIR 2020 SC 5592 the same is not admissible in evidence. To book and try booking an accused for the accusation of the offence committed under Section 29 of the NDPS Act, there must be some corroborative evidence. Besides the aforesaid confessional statement, nothing is there on record to corroborate or substantiate or verify the alleged charges. 9. Coming to the question of the ban contained in Section 37 of NDPS Act, it is mandated that untill fulfillment of the twin conditions of this section, bail should not be granted. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such an offence. As far as the contemplation of the first condition is concerned, ample and reasonable opportunity has been sufficiently afforded to the prosecution to protest the bail plea as well as to ensure the completion of trial expeditiously. At this stage, this court refrains from making any observations on the merits of the case as this would put an adverse effect on the trial. 10. At this stage, this court refrains from making any observations on the merits of the case as this would put an adverse effect on the trial. 10. This court is of the view that at least there should be some legally admissible evidence to support the charge. Since the punishment provision is very stringent and the rule of jurisprudence is that “graver the charges, greater has to be the standard of proof”. 11. 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 petitioners deserves to be enlarged on bail. It is to be made clear that none of the observations made herein above shall influence the trial judge in any manner so as to adversely affect the interests of either of the parties. 12. Accordingly, the second bail applications under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioners, named above, 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.