Sharif Khan vs State Of Rajasthan (2025:Rj-Jd:36686) on 18 August, 2025

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Rajasthan High Court - Jodhpur

Sharif Khan vs State Of Rajasthan (2025:Rj-Jd:36686) on 18 August, 2025

1. The jurisdiction of this court has been invoked by way of filing the instant second bail application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

S.No.                              Particulars of the Case
     1.     FIR Number                                   281/2023
     2.     Concerned Police Station                     Pindwara
     3.     District                                     Sirohi
     4.     Offences alleged in the FIR                  Sections 8/15, 25 & 29 of
                                                         the NDPS Act
     5.     Offences added, if any                       -
     6.     Date of passing of impugned 18.10.2024
            order


2.        His   first   and   second       bail     application       being   SBCRLMB

Nos.714/2024 & 10168/2024 were dismissed by this Court vide orders dated 06.03.2024 & 13.08.2024. Hence, the instant application for bail.

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3. It is contended on behalf of the accused-petitioner that the petitioner is arrested in this 02.12.2023 on the basis of statement of co-accused, however he was not present at the spot thus, no case for the alleged offences is made out against him and his 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- petitioner and he has 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 perusal of the record, it emerges that the petitioner has been incarcerated since 02.12.2023. The sole basis of his implication in the present case is the statement of a co- accused, which, by itself, is a weak and fragile piece of evidence in the absence of any independent corroboration. It is pertinent to note that the petitioner was not apprehended at the scene of occurrence, nor has any incriminating recovery been effected from his conscious possession. Thus, the allegation of his complicity in the alleged transportation of contraband appears to rest merely upon conjecture and unsubstantiated assertion, lacking any cogent evidentiary foundation.

6.1. The Court cannot be oblivious to the fact that, despite the considerable lapse of time, the trial has made little headway. (Downloaded on 20/08/2025 at 08:23:45 PM) [2025:RJ-JD:36686] (3 of 12) [CRLMB-2070/2025] Though charges have been framed, and proceedings technically commenced, out of a total seventeen witnesses cited by the prosecution, merely two have been examined till date. This delay stands further compounded by the filing of a supplementary charge-sheet on 11.02.2025, implicating one Shakur Khan, which has necessitated the initiation of a de novo trial. The prospect of the trial culminating in the foreseeable future is, therefore, bleak and remote.

6.2. In such circumstances, the continued detention of the petitioner would amount to punitive pre-trial incarceration rather than preventive custody, which is impermissible in law. The Hon'ble Supreme Court has consistently held that the right to speedy trial is an integral facet of the guarantee of life and personal liberty 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 progress in trial not only militates against the settled principles of criminal jurisprudence but also renders nugatory the fundamental presumption of innocence until proven guilty.

7. There exists no legally admissible evidence on record directly connecting the petitioner with the alleged offence, save and except for the statement allegedly made by a co-accused who was apprehended at the spot. According to the said co-accused, the individual who managed to flee from the scene prior to the arrival of the police and before the apprehension of the other accused (Downloaded on 20/08/2025 at 08:23:45 PM) [2025:RJ-JD:36686] (4 of 12) [CRLMB-2070/2025] persons was none other than the petitioner. However, such a disclosure made by a co-accused, in isolation and unsupported by any corroborative material, cannot, by itself, be treated as sufficient evidence to justify the continued and indefinite incarceration of another person. The evidentiary worth of this assertion stands further diluted by the fact that the said co- accused has subsequently retracted and contested the statement. At best, the position that emerges is that the Seizing Officer has deposed that the co-accused informed him about the alleged presence of the petitioner at the spot. The Seizing Officer, therefore, had no direct or independent knowledge of the petitioner's alleged presence at the scene of occurrence. His reference to the petitioner is purely derivative in nature, being founded solely upon the version supplied to him by another accused. The probative value of such derivative and uncorroborated disclosure is a matter that shall fall for determination before the learned Trial Court in accordance with law.

8. As per the law, while keeping an accused detained, the opportunity to the prosecutor to lead evidence can only be given for a reasonable period. The wider connotation of the phrase 'reasonable period' be understood to be one year because the case is classified as a sessions case which would mean that the like cases should commence and conclude within a session, that is, one year. Even if an elastic interpretation of the expression 'reasonable period' is taken on the pretext of certain unavoidable circumstances, then it can only be doubled and even in that (Downloaded on 20/08/2025 at 08:23:45 PM) [2025:RJ-JD:36686] (5 of 12) [CRLMB-2070/2025] situation, trial has to be completed within two years while keeping an accused in custody. Suffice it would to say that for the purpose of determination as to whether the accused is guilty or not, only a reasonable period can be awarded to the prosecutor if the accused is behind the bars. The cases which are classified as session case are purposefully directed to be heard by senior officer of District Judge Cadre looking to his experience and rank/grade/post. In criminal jurisprudence prevalent in India, there is a presumption of innocence working in favour of the accused until he is proven guilty in the trial. The trial is conducted for the purpose of affording an opportunity to the prosecutor to prove the charges and only for the purpose of proving guilt or adducing evidence on record, an unreasonable period of time cannot be granted as the same infringes the fundamental rights of an accused which are otherwise guaranteed by the Constitution of India. While entertaining a bail plea the Court of law is required to take into account the above-mentioned aspect of the matter as well beside the gravity of offence and quantum of sentence.

9. The prosecution in this case against the petitioner has been launched by invoking Section 29 of the NDPS Act. I am of the opinion that simply mentioning in the charge sheet that offence under Section 29 of the NDPS Act is made out against the petitioner is not sufficient enough to allow his incarceration until and unless any material is attached with the charge-sheet showing involvement/participation of the petitioner. For ready reference Section 29 of the NDPS Act is being reproduced as under:- (Downloaded on 20/08/2025 at 08:23:45 PM)

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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.

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12. 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 (Downloaded on 20/08/2025 at 08:23:45 PM) [2025:RJ-JD:36686] (8 of 12) [CRLMB-2070/2025] 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.

13. 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 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 petitioner.

14. 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 02.12.2023 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. But strangely, here in this case, nowhere the principal (Downloaded on 20/08/2025 at 08:23:45 PM) [2025:RJ-JD:36686] (9 of 12) [CRLMB-2070/2025] accused from whom the contraband got recovered ever named the petitioner. What would be the basis for the trial of this accused? Whether only the assertion of the police officer that petitioner is 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.

14. 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:

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[2025:RJ-JD:36686] (10 of 12) [CRLMB-2070/2025] "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. 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.

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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 petitioner, his 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 petitioner to an indefinite and uncertain incarceration. Although no elaborate arguments have been advanced on behalf of the petitioner, the fact remains that once the accused is in custody, the burden lies not upon him (Downloaded on 20/08/2025 at 08:23:45 PM) [2025:RJ-JD:36686] (12 of 12) [CRLMB-2070/2025] to establish his innocence but upon the prosecution to justify the necessity of his 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 petitioner deserves to be extended the benefit of bail.

15. Accordingly, the instant third 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.

(FARJAND ALI),J 51-Mamta/-

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Rajasthan High Court - Jodhpur