Rajasthan High Court - Jodhpur
Deendayal @ Deenu vs State Of Rajasthan (2024:Rj-Jd:40044) on 25 September, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:40044]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 10143/2024
Deendayal @ Deenu S/o Lichhudas, Aged About 38 Years, R/o
Kailash, P.s. Tarangar, Dist. Churu,raj. (Lodged In Dist. Jail,
Hanumangarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Miscellaneous 2nd Bail Application No. 10144/2024
Vikas S/o Late Ram Singh, Aged About 25 Years, R/o Haripura,
Tehsil Taranagar, Dist. Churu,raj. (Lodged In Dist. Jail,
Hanumangarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
S.B. Criminal Miscellaneous 2ndBail Application No.
12274/2024
Imran Khan S/o Ranjeet Khan, Aged About 37 Years, R/o
Chugani Chhapri, Gram Panchayat Chugani, Police Station
Deedwana, Dist. Nagaur (Raj.) (Lodged In Dist. Jail,
Hanumangarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. B.R. Bishnoi
For Respondent(s) : Mr. Rajesh Bhati, AGA
Mr. Ravindra Bhati, AGA
HON'BLE MR. JUSTICE FARJAND ALI
(Downloaded on 01/10/2024 at 09:46:47 PM)
[2024:RJ-JD:40044] (2 of 14) [CRLMB-10143/2024] Order 25/09/2024
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 541/2021 2. Concerned Police Station Hanumangarh Town 3. District Hanumangarh 4. Offences alleged in the FIR Section 8/15 of the NPDS Act 5. Offences added, if any Section 8/25 & 29 of the (Against petitioners Vikas and NDPS Act Imran) 6. Date of passing of impugned 24.07.2024 order(SBCRlMBNo.10143/2024) 6. Date of passing of impugned 23.07.2024 order (SBCRlM2nd BNo.10144/2024) 6. Date of passing of impugned 19.09.2024 order (SBCRlM2nd BNo.12274/2024)
2. It is contended on behalf of the accused-petitioners that 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.
3. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail applications and submits that the present case is not fit for enlargement of accused on bail.
(Downloaded on 01/10/2024 at 09:46:47 PM) [2024:RJ-JD:40044] (3 of 14) [CRLMB-10143/2024]
4. I have heard and considered the submissions made by both the parties and have perused the material available on record.
5. Brief facts of the case are that two vehicles (Mahendra Jeep bearing registration No.RJ05 C 0157 & Swift Desire Car No.RJ31 CA7172) were intercepted by the police and 7 bags weighing 140 Kg and 80 Kg contraband poppy husk came to be recovered from both the vehicles and therefore, two separate cases were registered. One case is lodged for recovery of 80 Kg poppy husk and the other is for 140 Kg poppy husk. Some of the accused are here for charge of having possession of the contraband (Deendayal @ Deenu) and some (Vikas and Imran) were made accused for hatching conspiracy with the principal accused. All are detained and facing trial and further more time shall be consumed in culmination of the trial.
6. For the accused (Deendayal) who is in custody in relation to having possession of the contraband, it is argued that there is a blatant violation of Section 52 A of the NDPS Act; the Standing Order No.1/1988 issued by the Central Government as well as the non-compliance of the NDPS Rules regarding search, seizure and sample. The prolonged incarceration of the petitioners is the prime argument. For the petitioners who are accused for committing ofence under Section 29 of the NDPS Act, arguments have been raised with regard to non-availability of direct or indirect evidence to show their connectivity either with the accused or with the recovered contraband. Of course, there is a fetter under Section 37 of the NDPS Act regarding grant of bail to an accused having illegal possession of commercial quantity of contraband but a (Downloaded on 01/10/2024 at 09:46:47 PM) [2024:RJ-JD:40044] (4 of 14) [CRLMB-10143/2024] fundamental right of speedy trial to him/them cannot be permitted to be flouted. When there comes an issue between the statutory provision and the fundamental right then this Court is of the view that a protection of fundamental right should be given preference over the statutory bar in granting bail. If the trial is prologned by the prosecution for one or the other reason; the personal liberty of an individual can not be encroached upon by keeping him/them behind the bars for an indefinite period.
7. There is a force in the defence plea that neither mandatory provisions have been complied with nor any sample was taken in accordance with the mandate contained under Section 52A of the NDPS Act. It is further observed that pending trial, an accused cannot be kept behind the bars for an unreasonable period.
8. 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 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 (Downloaded on 01/10/2024 at 09:46:47 PM) [2024:RJ-JD:40044] (5 of 14) [CRLMB-10143/2024] 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. 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. This court is of the view that at least there must be some corroborations or support to verify the confession made by the accused to the Police Officer while in lockup.
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:- (Downloaded on 01/10/2024 at 09:46:47 PM)
[2024:RJ-JD:40044] (6 of 14) [CRLMB-10143/2024] "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. 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. This Court is cognizant of the provisions contained in Section 37 of the NDPS Act but considering the submissions made by learned counsel for the accused- petitioner regarding him being made an accused only on the basis of statement of co-accused.
12. Simply mentioning in the charge sheet that offence under Section 29 of the NDPS Act is made out against the petitioners is not sufficient enough to allow his incarceration until and unless any material is attached with the charge-sheet showing involvement/participation of the petitioners. For ready reference Section 29 of the NDPS Act is being reproduced as under:-
29. Punishment for abetment and criminal conspiracy.--
(Downloaded on 01/10/2024 at 09:46:47 PM)
[2024:RJ-JD:40044] (7 of 14) [CRLMB-10143/2024] (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 abets 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 abetment or in pursuance of the criminal conspiracy hatched by them.
13. Abetment is defined under Section 107 of the IPC for the ready reference, the same is being reproduced hereunder:- (Downloaded on 01/10/2024 at 09:46:47 PM)
[2024:RJ-JD:40044] (8 of 14) [CRLMB-10143/2024] 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 abets the fact of doing of a thing if he/they instigate someone to do it or a person abates the doing of a thing, if he/they 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 abetment was committed. The other aspect of the provision is that if a person, while abetting the other intentionally aids or assists in doing the thing by any of his act or illegal omission, he is an accused of abetment.
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 01/10/2024 at 09:46:47 PM) [2024:RJ-JD:40044] (9 of 14) [CRLMB-10143/2024] 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.
14. What is emanating from the provision of abetment or conspiracy that there has to be an act of abetment on behalf of the accused or he/they must be in agreement with the other persons to do an illegal act.
15. 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 around three years 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 petitioners either abetted or was in conspiracy with the principal accused. 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 (Downloaded on 01/10/2024 at 09:46:47 PM) [2024:RJ-JD:40044] (10 of 14) [CRLMB-10143/2024] 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.
16. The present petitioners (Vikas and Imran) had been made accused in this case on the basis of confessional statement of the principal-accused and to connect the present petitioner to the alleged recovery. Efforts have also been made to connect the petitioner with the principal-accused, however, no connecting evidence has been produced so as to add direct nexus between the petitioner and principal accused from whom the contraband was recovered. In the case at hand, nothing has been recovered from the present petitioners and no other legally admissible evidence that could connect the petitioner to the crime or to the other co-accused persons for that matter has come to the fore, thus, the disclosure statement of the co-accused in police custody on the basis of which the present petitioners have been made an accused in this case remains just illusory knowledge and does not become a fact proved as no fact has been discovered in consequence of the information disclosed by the co-accused, thus, it cannot be said with certainty that the accused can be roped in for commission of offence under Section 29 of the NDPS Act.
17. 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 (Downloaded on 01/10/2024 at 09:46:47 PM) [2024:RJ-JD:40044] (11 of 14) [CRLMB-10143/2024] (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 (Downloaded on 01/10/2024 at 09:46:47 PM) [2024:RJ-JD:40044] (12 of 14) [CRLMB-10143/2024] 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.
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) (Downloaded on 01/10/2024 at 09:46:47 PM) [2024:RJ-JD:40044] (13 of 14) [CRLMB-10143/2024]
18. At the stage of hearing of a bail plea pending trial, although this Court is not supposed to make any definite opinion or observation with regard to the discrepancy and legal defect appearing in the case of prosecution as the same may put a serious dent on the State's case yet at the same time, this Court can not shut its eye towards the non-compliance of the mandatory provision, around three years of incarceration pending trial, failure of compliance with the procedure of sampling and seizure and the serious issue of competence of seizure officer. 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. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody, this court feels that the accused are not supposed to establish a case in support of his innocence rather his detention is required to be justified at the instance of the prosecution, therefore, this court went deep into the facts of the case and the manner in which the entire proceedings have been undertaken. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial.
(Downloaded on 01/10/2024 at 09:46:47 PM)
[2024:RJ-JD:40044] (14 of 14) [CRLMB-10143/2024]
19. In Rabi Prakash Vs. State of Odisha passed in Special leave to Appeal (Crl.) No.(s) 4169/2023, Hon'ble the Apex Court has again passed an order dated 13th July, 2023 dealing this issue and has held that the provisional liberty(bail) overrides the prescribed impediment in the statute under Section 37 of the NDPS Act as liberty directly hits one of the most precious fundamental rights envisaged in the Constitution, that is, the right to life and personal liberty contained in Article 21.
20. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioner.
21. Accordingly, the instant bail applications under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioner as named in the cause title 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.
(FARJAND ALI),J 134-Mamta/-
(Downloaded on 01/10/2024 at 09:46:47 PM) Powered by TCPDF (www.tcpdf.org)