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Rajasthan High Court · body

2025 DIGILAW 1662 (RAJ)

Mangi Lal S/o Ram Lal Jat v. State of Rajasthan

2025-10-28

FARJAND ALI

body2025
ORDER : 1. The jurisdiction of this court has been invoked by way of filing the instant bail applications under Section 439 CrPC at the instance of accused-petitioners. The requisite details of the matter are tabulated herein below: S.No. Particulars of the Case 1. FIR Number 30/2024 2. Concerned Police Station Nimbahera Sadar 3. District Chittorgarh 4. Offences alleged in the FIR Section 8/15 of the NDPS Act 5. Offences added, if any Sections 8/25 & 8/29 of the NDPS Act 6. Date of passing of impugned order (SBCRLM2ndB No.9543/2025) 16.07.2025 6.A Date of passing of impugned order (SBCRLM3rdB No.6468/2025) 28.04.2025 2. Briefly stated the case of the prosecution is that on 25.01.2024, the Station House Officer, Sadar Nimbahera, along with the police team, while conducting naka-bandi at Ahirpura border, intercepted a truck bearing registration No.HR-38-Z1117 coming from Neemuch. The said truck was being driven by Mukesh Garg. Upon conducting a lawful search of the vehicle in his presence, a total of 187 plastic bags containing approximately 36 quintals, 56 kilograms, and 200 grams of illegal opium (Doda Chura) were recovered. 2.1. During the course of investigation, it was revealed that the present accused, Mangilal and Bhura Lal were actively involved in the illegal purchase, sale, and trafficking of the aforesaid contraband. Consequently, on the basis of material collected during investigation, an offence under Sections 8 /29 of the NDPS Act was found established against them, and a charge-sheet was accordingly filed before the competent court. 3. It is contended on behalf of the accused-petitioners that they are arrested since 10.02.2024 & 30.01.2024 on the basis of statement of co-accused, however they were not present at the spot thus, no case for the alleged offences is made out against them and their incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioners and they have been made an accused based on conjectures and surmises. 4. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail. 5. Have considered the submissions made by both the parties and have perused the material available on record. 6. Upon a meticulous scrutiny of the record, it transpires that the petitioners have been under incarceration since 2024. 5. Have considered the submissions made by both the parties and have perused the material available on record. 6. Upon a meticulous scrutiny of the record, it transpires that the petitioners have been under incarceration since 2024. Their implication in the present case rests solely upon the statement of a co-accused, which, in the absence of any independent corroborative material, constitutes a weak and tenuous piece of evidence. It is significant to note that the petitioners were neither apprehended at the scene of occurrence nor has any incriminating recovery been effected from their conscious possession. Consequently, the allegation of their complicity in the alleged transportation of contraband appears to be founded merely on conjecture and unsubstantiated assertion, devoid of any cogent evidentiary basis. 6.1 The Court further observes that despite the considerable lapse of time, the trial has witnessed minimal progress. Though charges have been framed and proceedings have formally commenced, out of a total of twenty-seven witnesses cited by the prosecution, only one witness has been examined till date. In such circumstances, the petitioners’ continued detention partakes the character of punitive pre-trial incarceration rather than preventive custody, which stands proscribed in law. The Hon’ble Supreme Court has consistently underscored that the right to a speedy trial is an integral facet of the guarantee of life and personal liberty enshrined under Article 21 of the Constitution of India (Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369 ; Kadra Pahadiya v. State of Bihar, 1981 Supp SCC 308; Satender Kumar Antil v. CBI, (2022) 10 SCC 51 ) . Prolonged incarceration without tangible progress in trial militates against the foundational principles of criminal jurisprudence and erodes the presumption of innocence until guilt is duly established. 6.2 The prosecution has sought to invoke Section 29 of the NDPS Act , against the petitioners. However, a mere recital in the charge- sheet that an offence under Section 29 is made out, bereft of any substantive material indicating the petitioners’ participation, abetment, or conspiracy, cannot justify their continued detention. The alleged disclosure made by a co-accused, standing alone and unsupported by independent evidence, is insufficient in law to sustain prolonged incarceration, particularly when such statement has subsequently been retracted and contested by the maker himself. The alleged disclosure made by a co-accused, standing alone and unsupported by independent evidence, is insufficient in law to sustain prolonged incarceration, particularly when such statement has subsequently been retracted and contested by the maker himself. 6.3 It is further noted that only PW-1 Ram Sumer, the Investigating Officer, has been examined thus far, and the prosecution has yet to adduce credible evidence to establish that the petitioners were actively engaged in the illegal purchase, sale, or trafficking of the recovered contraband. Meanwhile, the petitioners have remained in custody for over one year and ten months, without the trial showing any meaningful advancement. For ready reference, Section 29 of the NDPS Act is reproduced hereinbelow: — 29. Punishment for abetment and criminal conspiracy. (1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which- (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India. A plain reading of the provision above makes it clear that if a person abetes the other to commit the offence under the NDPS Act , or a person who hatches a conspiracy with other persons to commit an offence punishable under the NDPS Act , can be charged for the offence under Section 29 of the NDPS Act and it does not matter whether the offence was committed or not in consequence of such abetement or in pursuance of the criminal conspiracy hatched by them. 7. 7. Abetement is defined under Section 107 of the IPC for the ready reference, the same is being reproduced hereunder:- Abetment of a thing. A person abets the doing of a thing, who— First.— Instigates any person to do that thing; or Secondly.— Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.— Intentionally aids, by any act or illegal omission, the doing of that thing. From the above, it is revealing that a person abetes the fact of doing of a thing if he instigate someone to do it or a person abates the doing of a thing, if he conspire with others to do it. If an act or illegal omission occurs in furtherance of that conspiracy then it can be said that an offence of abetement was committed. The other aspect of the provision is that if a person, while abeting the other intentionally aids or assists in doing the thing by any of his act or illegal omission, he is an accused of abetement. Criminal Conspiracy is explained under Section 120-B of the IPC, which is as under:- 120B. Punishment of criminal conspiracy. -- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] To invoke the provision of Criminal conspiracy there has to be an agreement of mind between two or more people to commit an illegal act or to commit an act though not illegal but done by illegal means and the parties have a common intention to commit the act. 8. 8. What is emanating from the provision of abetement or conspiracy that there has to be an act of abetement on behalf of the accused or he or they must be in agreement with the other persons to do an illegal act. After minutely going through the entire charge-sheet, not an iota of evidence or tissue of the material is there to show or suggest that any recovery has been affected at the instance of the present petitioners. 9. True, it is that the appreciation rather meticulous appreciation of evidence is not to be done at the inception of the trial but at the same time, it cannot be forgotten that here is an issue of releasing a person on bail who has been detained from 10.02.2024 and 30.10.2024 for accusation of committing an offence in a particular provision, at least, there must be something to either corroborate/bolster, to support or verify the saying of the police officer that the petitioner either abeted or was in conspiracy with the principal accused. Had it been the case that soon after or at the time of recovery of the contraband; the principal accused made a disclosure regarding involvement/participation of the accused, if the same was disclosed by him, then the fact situation may be different. What would be the basis for the trial of this accused? Whether only the assertion of the police officer that petitioners are guilty of the charge without single piece of proof; Whether the same as mentioned above, would be sufficient enough to keep a person detained for an indefinite period; Whether in the circumstances mentioned above, the embargo contained under Section 37 of the NDPS Act would come in the way of granting bail; Whether at this stage of judicial proceeding it would be appropriate to declare that he is not guilty of the offence. No, never. It is neither expected nor desirable from a High Court, since doing so, would mean culmination of the trial at its infancy. 10. Moving on to the impediments contained under Section 37 of the NDPS Act , it is considered relevant to refer to the recent ruling passed by Hon'ble the Supreme Court in Mohd Muslim @ Hussain V. State (NCT OF DELHI) Vs. 10. Moving on to the impediments contained under Section 37 of the NDPS Act , it is considered relevant to refer to the recent ruling passed by Hon'ble the Supreme Court in Mohd Muslim @ Hussain V. State (NCT OF DELHI) Vs. State (NCT of Delhi) passed by Hon’ble the Supreme Court in Special Leave Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023 , wherein while discussing the parameters of Section 37 of the NDPS Act , it was held that the provision cannot be construed in a manner that would render the grant of bail impossible. The accused-appellant in the aforementioned case was directed to be enlarged on bail looking to the long period of incarceration. The paragraphs of Mohd. Muslim @ Hussain (supra ) relevant to the present matter are 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, 1 Special Leave Petition (CRL.) NO(S). 915 of 2023, decided on 28.03.2023. 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. 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. 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 .” (Emphasis Supplied) In the case of Mohd. Muslim @ Hussain (Supra) it has been propounded that at the stage of hearing a bail application under Section 439 Cr.P.C., although it is not possible to make a definite opinion that they are not guilty of the alleged crime but for the limited purpose for the justifiable disposal of the bail applications, a tentative opinion can be formed that the material brought on record is not sufficient enough to attract the embargo contained under Section 37 of the NDPS Act . in view of the absence of any recovery from the petitioners, their non-presence at the scene of occurrence, and the remote prospect of the trial reaching its conclusion within a reasonable period, this Court finds no justification for subjecting the petitioners to an indefinite and uncertain incarceration. in view of the absence of any recovery from the petitioners, their non-presence at the scene of occurrence, and the remote prospect of the trial reaching its conclusion within a reasonable period, this Court finds no justification for subjecting the petitioners to an indefinite and uncertain incarceration. Although no elaborate arguments have been advanced on behalf of the petitioners, the fact remains that once the accused is in custody, the burden lies not upon him to establish his innocence but upon the prosecution to justify the necessity of their continued detention. It is in this backdrop that this Court has carefully scrutinized the factual matrix of the case as well as the manner in which the proceedings have been conducted. The settled principle of law is that personal liberty, being a cherished constitutional guarantee under Article 21 of the Constitution of India, cannot be curtailed except in strict conformity with statutory safeguards. Where surrounding circumstances are found to be in consonance with such statutory stipulations, the accused cannot be relegated to a prolonged and indefinite confinement merely on account of pendency of trial. In light of the foregoing considerations, this Court is of the considered opinion that the petitioners deserve to be extended the benefit of bail. 11. Accordingly, the instant 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 furnish 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.