Vinod vs State Of Rajasthan (2024:Rj-Jd:39585) on 23 September, 2024

[Cites 19, Cited by 0]

Rajasthan High Court - Jodhpur

Vinod vs State Of Rajasthan (2024:Rj-Jd:39585) on 23 September, 2024

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                                    74/2023
     2.     Concerned Police Station                      Rohida
     3.     District                                      Sirohi
     4.     Offences alleged in the FIR                   Sections 8/15 & 29 of the
                                                          NDPS Act
     5.     Offences added, if any
     6.     Date of passing of impugned 30.05.2023
            order

2. In nutshell the facts of the case are that on 16.05.2023 Shri Devaram Sub- Inspector, PS Rohida, Sirohi along with him team during patrolling, intercepted I-20 Car bearing registration (Downloaded on 24/09/2024 at 09:02:44 PM) [2024:RJ-JD:39585] (2 of 16) [CRLMB-12060/2024] No.RJ06 CC5822 and interrogated the driver, who disclosed his name as Vinod and at that time one another Verna Car bearing registration No. RJ06 CB8260 came there but on seeing the police team, the driver of the Verna Car escaped from the spot and the other person sitting therein disclosed his name as Pawan Choubisa, who further stated that the person who escaped was Nakshtra Giri R/o Chittorgarh. When the driver of I-20 i.e. Vinod was further interrogated, he stated that he was escorting the car of Pawan Choubisa, in which, poppy husk was being transported. During search, five plastic bags weighing 80 Kg Poppy husk was recovered from the Verna Car. On the basis of the above, the petitioner was arrested and a case under Sections 8/15 & 29 of the NDPS Act was registered against the accused Pawan Choubisa and Vinod.

3. 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. The petitioner is behind the bars 16.05.2023. 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 petitioners, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

5. I have considered the submissions made by both the parties and have perused the material available on record. (Downloaded on 24/09/2024 at 09:02:44 PM) [2024:RJ-JD:39585] (3 of 16) [CRLMB-12060/2024]

6. Perusal of the record revealing that Investigating Officer has been examined in the trial and his statement has been recorded wherein he admitted that no recovery was affected from the present petitioner. As per him, the accused Pawan Choubisa was accompanying the principal accused Nakshtra Giri in the vehicle but he alighted before the recovery took place however, the IO admits that the petitioner did not embark in the vehicle from the place where the poppy husk was loaded in the Verna Car. The another angle of the case would be that the above narrated story is totally based upon confession made by the accused Nakstra Giri to a police officer while in custody and there is nothing on record to corroborate or verify the above fact of accompanying and alighting. The Investigating Officer further admits that the tower location petitioner's mobile phone was not traced out at the relevant place.

7. There is substance in the plea raised by learned counsel that except the confession made by the accused while in custody to the police, nothing is on record to connect the petitioner with the alleged recovery. It is further argued that until and unless anything is discovered or recovered in pursuance of the information provided under Section 27 of the Evidence Act, the mere confession cannot be taken as a piece of evidence and, therefore, a person cannot be detained indefinitely on that count. Thus, detention of an individual based on such tainted disclosure statement by the accused himself cannot be made basis for an indefinite detention.

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8. 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.

9. It has been held by the Privy Council in the case of Pulukuri Kottaya and Ors. Vs. Emperor, reported in AIR 1947 PC 67 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 paragraphs of the judgment reads as under:-

10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the (Downloaded on 24/09/2024 at 09:02:44 PM) [2024:RJ-JD:39585] (5 of 16) [CRLMB-12060/2024] information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate.

Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to s. 26, added by s. 27, should not be held to nullify the substance of the section. In their Lordships view it is fallacious to treat the "fact discovered" within the section as equivalent to the (Downloaded on 24/09/2024 at 09:02:44 PM) [2024:RJ-JD:39585] (6 of 16) [CRLMB-12060/2024] 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.

11. High Courts in India have generally taken the view as to the meaning of s. 27 which appeals to their Lordships, and reference may be made particularly to (29) 10 Lah. 283 : 16 MANU/LA/0128/1929 : A.I.R. 1929 Lah. 344 : 115 I.C. 6 (F.B.), Sukhan v. Emperor and MANU/MH/0264/1931 : (32) 56 Bom. 172 : 19 A.I.R. 1932 Bom. 286 : 157 I.C. 174, Ganu Chandra v.

Emperor on which the appellants rely, and with which their Lordships are in agreement. A contrary view has, however, been taken by the Madras High Court, and the question was discuss ed at length in a Full Bench decision of that Court in MANU/TN/0455/1937 : (37) I.L.R. (1937) Mad. 695 :

24 A.I.R. 1937 Mad. 618 : 171 I.C. 245 (F.B.), Athappa Gaundan v. Emperor where the cases were referred to. The Court, whilst admitting that the (Downloaded on 24/09/2024 at 09:02:44 PM) [2024:RJ-JD:39585] (7 of 16) [CRLMB-12060/2024] weight of Indian authority was against them, nevertheless took the view that any information which served to connect the object discovered with the offence charged was admissible, under S. 27. In that case the Court had to deal with a confession of murder made by a person in police custody, and the Court admitted the confession because in the last sentence (readily separable from the rest) there was an offer to produce two bottles, a rope, and a cloth gag, which, according to the confession had been used in, or were connected with, the commission of the murder, and the objects were in fact produced.

The Court was impressed with the consideration that as the objects produced were not in themselves of an incriminating nature their production would be irrelevant unless they were shown to be connected with the murder, and there was no evidence so to connect them apart from the confession. Their Lordships are unable to accept this reasoning. The difficulty, however great, of proving that a fact discovered on information supplied by the accused is a relevant fact can afford no justification for reading into s. 27 something which is not there, and admitting in evidence a confession barred by s. 26. Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.

10. This Court has seriously pondered over the submission made at the Bar. The law in this regard is not no more res-integra that Section 27 of the Evidence Act is an exception to the Sections (Downloaded on 24/09/2024 at 09:02:44 PM) [2024:RJ-JD:39585] (8 of 16) [CRLMB-12060/2024] 24, 25 & 26 of the Evidence Act and the exceptional circumstances limits it's applicability to the extent of the discovery if any, made in pursuance of the information furnished under Section 27 of the Evidence Act. It is not in dispute that the petitioner has made disclosure to the police officer while in custody except the said statement, nothing is on record to verify the confession made by him, it casts a serious doubt to ponder over as to whether the same was made voluntary or is truthful or not; is a serious question of law, could only be adjudicated by the trial Court after taking the entire evidence on record. At present, this Court feels that long detention of an accused cannot be made, as the same is based upon the uncertain quality of evidence. Unless the incriminating article is recovered, the self confession made by an accused while in custody is not sufficient enough to allow his further incarceration. Only discovery of an object; the place from where it is produced and so also the knowledge of the accused regarding the place would be admissible in evidence.

11. 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.--

(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this (Downloaded on 24/09/2024 at 09:02:44 PM) [2024:RJ-JD:39585] (9 of 16) [CRLMB-12060/2024] 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.

12. Abetment 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--

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[2024:RJ-JD:39585] (10 of 16) [CRLMB-12060/2024] 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 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 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 punishable as aforesaid shall be punished with (Downloaded on 24/09/2024 at 09:02:44 PM) [2024:RJ-JD:39585] (11 of 16) [CRLMB-12060/2024] 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 abetment or conspiracy that there has to be an act of abetment 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 either there had been a meeting between the petitioner and the principal accused or they were in any manner connected with each other or even to say that anything was done by the petitioner which somehow added/assisted/facilitated/or in any manner cooperated with the principal accused.

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 the petitioner on bail who has been detained for more than one year 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 abetted or was in conspiracy with the principal accused.

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15. The present petitioner had been made accused in this case on the basis of his confessional statement to the police official and to connect him with the alleged recovery. Efforts have also been made to connect the petitioner with the alleged recovery, however, no connecting evidence has been produced so as to add direct nexus of the present accused with the recovered contraband. In the case at hand, nothing has been recovered from the present petitioner 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 petitioner himself while in police custody on the basis of which he has 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.

16. 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 (Downloaded on 24/09/2024 at 09:02:44 PM) [2024:RJ-JD:39585] (13 of 16) [CRLMB-12060/2024] 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 (Downloaded on 24/09/2024 at 09:02:44 PM) [2024:RJ-JD:39585] (14 of 16) [CRLMB-12060/2024] 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)

17. 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 (Downloaded on 24/09/2024 at 09:02:44 PM) [2024:RJ-JD:39585] (15 of 16) [CRLMB-12060/2024] 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.

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, more than a year 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 he is not guilty of the alleged crime but for the limited purpose for the justifiable disposal of the bail application, 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 is 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 (Downloaded on 24/09/2024 at 09:02:44 PM) [2024:RJ-JD:39585] (16 of 16) [CRLMB-12060/2024] 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. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioner.

19. Accordingly, the instant 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 the 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 230-Mamta/-

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Rajasthan High Court - Jodhpur