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2023 DIGILAW 836 (RAJ)

Vishal S/o Shri Dinesh v. State of Rajasthan

2023-04-17

FARJAND ALI

body2023
ORDER : 1. The instant bail application has been filed by the petitioner-Vishal S/o Shri Dinesh under Section 439 Cr.P.C. against the order impugned passed by learned court below in connection with FIR No. 101/2022, registered at Police Station Rathanjana, Dist. Pratapgarh for the offences under Sections 8/15, 25 and 29 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. He further submits that 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 their 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 has 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. 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 poppy husk weighing 75 Kilograms was recovered at the instance of co-accused persons which were sold to them by the petitioner. 3. Per contra, learned Public Prosecutor opposed the bail application on the ground that contraband poppy husk weighing 75 Kilograms was recovered at the instance of co-accused persons which were sold to them by the petitioner. The recovered contraband poppy husk is 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. 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. 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 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. The Privy Council in the case of Pulukuri Kotayya vs. Emperor, 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. 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.” 6. 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, AIR 1963 SC 113 and then, it has been reiterated/referred in a catena of legal pronouncements. 7. In the case of Navaneethakrishnan vs. The State, 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.” 8. It has been held by Hon’ble the Supreme Court in the case of Mohd. Inayatullah vs. State of Maharastra, 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. 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 the Section 27 of the Evidence Act and the judgments referred above that the part of 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 of another fact to corroborate the said information and to 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. 10. There is no contact in between the petitioner and the principal accused from whom the recovery has been effected and thus, as per the material available on record, tentatively an inference can be drawn that there is no direct nexus between the petitioner and the recovery effected at the instance of other coaccused. 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. 11. In a recent ruling titled Mohd Muslim @ Hussain vs. State (NCT of Delhi) in Special Leave Petition (Crl.) No. 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: “19. The paragraph of the afore-said judgment relevant to the present matter is reproduced below: “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 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.” 12. 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. 13. 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. 14. 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.