Allowed

Amit @ Bablu v. Union of India

Rajasthan HC11 Jul 2024CRLMB/621/2024

Case brief

AI extract

What is this about?

Second bail application allowed in an NDPS case. Court held that the confession of a co-accused recorded under Section 67 NDPS Act is inadmissible per Toofan Singh. No material links petitioner to crime. Bail granted despite Section 37 NDPS Act embargo as trial not commenced and case depends on conjectures.

What did the court decide?

Bail granted; personal bond of Rs. 50,000/- with two sureties of Rs. 25,000/- each.

Amit @ Bablu Vs Union of India — Arbitration | Rajasthan HC (2024)

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[2024:RJ-JD:28804]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous 2^nd Bail Application No. 621/2024

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Amit @ Bablu S/o Shri Ramdayal Mali, Aged About 40 Years, R/o A/390, Vidhyut Nagar, Sanjay Colony, Subhash Nagar Police Station, Bhilwara, Dist. Bhilwara. (Lodged In Dist. Jail, Chittorgarh)

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----Petitioner

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Versus

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Union Of India, Through Cbn Chittorgarh.

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----Respondent

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For Petitioner(s)	: Mr. N.K. Gurjar
	Mr. Anand Purohit Sr. Advocate
	assisted byMr. Mayank Roy
For Respondent(s)	: Mr. M.R. Pareek,Spl. PP for NCB

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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11/07/2024

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

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are tabulated herein below:

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S.No.	Particulars of	the Case
1.	FIR Number	02/2022
2.	Concerned Police Station	NCB Jodhpur
3.	District	Jodhpur
4.	Offences alleged in the FIR	Section 8/20, 8/25 & 8/29 of the NDPS Act
5.	Offences added,if any	-
6.	Date of passing of impugned order	13.12.2023

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His first bail application being SBCRLMB No.1613/2023 came to

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be dismissed as withdrawn but a liberty was afforded to the

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petitioner to renew the prayer for bail after the statement of Investigating Officer is recorded. Hence the instant bail application.

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It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. He has been made accused on the strength of confessional statement allegedly made by 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. Since nothing is there on record from which involvement of the accused can be presumed, therefore, the embargo under Section 37 of NDPS Act do not come in way of releasing the petitioners on bail. There is high probability that the trial may take long time to conclude. 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.

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Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the alleged recovered contraband is way above the demarcated commercial quantity, thus, the impediment contained under Section 37 of NDPS Act will be attracted in the factual situation of the present case.

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Have considered the submissions made by both the parties and have perused the material available on record.

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Perusal of the record revealing that on 09.01.2022, upon receiving a secret information, the team of NCB, Jodhpur headed by Kaushal Kumar intercepted a Truck No.KA25 D7094 which was being driven by Shanker Lal whereas Pawan Kumar and Raju Ram were also present at the spot. Upon search, 11 boxes containing 279 Kg 65 gms Ganja was recovered. The petitioner has been made accused solely on the basis of the statement of co-accused, sans, any support or corroboration of any independent evidence. The basis of accusation against the petitioner happens to be the statement recorded under Section 67 of the NDPS Act which is otherwise not admissible in view of the judgment passed by the Hon’ble Apex court in the matter of Toofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1 wherein the reference sa ansered by Hon’ble Supreme Court that any confession made by an accused even before an officer of the NCB is a confession which otherwise also, is hit by Sections 25 & 26 of the Indian Evidence Act and a such, the law is no more res-integra that the statement under Section 67 of the NDPS Act cannot be a sole basis for conviction. It is not comprehensible that who will come in the witness box during the trial to depose against the petitioner except the Investigating Officer, who may say that the accused made a confession before him. What would be evidentiary value of the statement of the Investigating Officer is a highly disputed question, which this Court do not want to decide at this stage as the same may cause prejudice to the parties to the litigation.

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In the case at hand, nothing has been recovered from the present petitioner and no other legally admissible evidence that

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could connect the petitioner to the crime or to the other coaccused 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 petitioner has 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.

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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.

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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:-

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“For the application of Section 27 the statement

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must be split into its components and to separate

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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.”

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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.

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11. I have seriously pondered over the fetter contained under Section 37 of the NDPS Act but convinced that in the given circumstances, the embargo put in the above provision would not be an impediment in granting bail to the petitioner since he is behind the bars and trial has not been commenced yet, it can be assumed that the culmination would surely take a long time. In light of these facts and circumstances, it is deemed suitable to grant the benefit of bail to the petitioner in the present matter. Needless to say, none of the observations made herein under shall affect the rights of either of the parties during trial and this Court refrains from commenting on the niceties of the matter.

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At a pre-conviction stage; bail is a rule and denial from the same should be an exception. The purpose behind keeping an accused behind the bars during trial would be to secure his presence on the day of conviction and that he may receive the sentence as would be awarded to him. Otherwise, it is the rule of Crimnal Jurisprudence that he shall be presumed innocent until the guilt is proved.

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Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner as named in the cause title 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.

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(FARJAND ALI),J

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185-Mamta/-

Amit @ Bablu v. Union of India

Case brief

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Amit @ Bablu v. Union of India

Case brief

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