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2023 DIGILAW 745 (RAJ)

Sumit S/o Sh. Ramniwas v. State Of Rajasthan

2023-03-29

FARJAND ALI

body2023
ORDER : 1. The instant bail application has been filed by the petitioner Sumit S/o Sh. Ramniwas under Section 439 Cr.P.C against the order impugned passed by learned court below in connection with FIR No.108/2022, registered at Police Station Dangiawas, District Jodhpur(east), for the offences under Sections 8/21 of NDPS Act. 2. 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. 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. Learned counsel submits that if at the time of effecting the recovery, the principal accused would have disclosed regarding the complicity of the petitioner then it would have been a different situation because instantaneous and spontaneous disclosure regarding alleged transaction may come within the premise of doctrine of res gestae but no such thing was disclosed by the principal accused at that moment in time; the alleged disclosure statement was said to have been made by the principal accused, 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 submits that for booking an accused for the accusation of the offence committed under Section 29 of the NDPS Act, there must be some corroborative evidence. 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 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. 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. He further 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. 3. Per contra, learned Public Prosecutor opposed the bail application on the ground that contraband smack weighing 14 grams and contraband MDMA weighing 218 grams were recovered at the instance of co-accused persons which were sold to them by the petitioner. The recovered contraband MDMA is way above the demarcated commercial quantity. 4. Heard and perused the material available on record. 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. This court is of the view that at least there must be some corroborations or support to verify the confession made by the principal accused to the Police Officer while in lockup. If this said disclosure statement is a piece of evidence then this Court is forced to wonder who will come to the witness box to substantiate the charge against the petitioner for his alleged act of his being the alleged future recipient of the contraband. If this said disclosure statement is a piece of evidence then this Court is forced to wonder who will come to the witness box to substantiate the charge against the petitioner for his alleged act of his being the alleged future recipient of the contraband. 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. 5. On this facet, this Court would like to refer to what the founding father of Indian Evidence Act, Sir James Stephen, had to say. On page 442 of his book titled ‘History of Criminal Law’, he wrote as 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.” 6. The above paragraph has also been been quoted by Vinod Chandran, J. in Thadiyantevedia Nazeer & Anr Vs State of Kerala: Crl. Appeal Nos.1699 & 1914 of 2011. 7. 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 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." 8. 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. 9. 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.” 10. 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.” 11. 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.” 11. 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. 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”. 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.” 12. 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. 13. 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. 14. 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. 14. 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, therefore, the electronic evidence do not help the case of the prosecution. The entire case wholly and mainly depends upon the confessional statement of the co-accused. 15. Though learned public prosecutor submitted that the embargo contained under Section 37 of NDPS Act is attracted, however, he was not in a position to show any evidence against the accused petitioner except the confession allegedly made by co-accused to the police officer while in custody. This court is of the firm opinion that there must be some direct or indirect evidence to continue detention of a person where the provisions pertaining to sentence are stringent and the rule of jurisprudence is that “graver the charges, greater has to be the standard of proof”. Deprivation of a person from his fundamental right to liberty must be based on solid and cogent grounds. 16. 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. 17. 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. 18. 17. 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. 18. Accordingly, the second bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner named above 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.