Patna High Court – Orders
Rajesh Kumar Singh vs The State Of Bihar on 15 May, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.31498 of 2025
Arising Out of PS. Case No.-456 Year-2024 Thana- BANMANKHI District- Purnia
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Rajesh Kumar singh S/o Upendra Prasad singh R/o Vill.- Harpurmadi, P.S.-
Banmankhi, Distt.- Purnea (Bihar)
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Nishant Kumar Sinha, Advocate
For the State : Mr. Khurshid Anwar, APP
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CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL ORDER
2 15-05-2025
Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner seeks bail, apprehending his arrest,
in connection with Banmankhi P.S. Case No. 456 of 2024, dated
16.12.2024, registered for the offences punishable under
Sections 8(c), 20(b)(ii)(A) and 25 of the NDPS Act.
3. As per allegation, 970 gm Ganja was recovered
from the possession of co-accused viz., Md. Majhar and Md.
Rustam and in their confessional statements, it has transpired
that they had purchased this contraband from the petitioner.
4. Learned counsel for the petitioner submits that the
petitioner is innocent and has falsely been implicated in this
case on account of inadmissible material which can not be
converted into evidence during the trial. He further submits that
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nothing has been recovered from the possession of the
petitioner. He further submits that the whole case against the
petitioner is based on the confessional statement of the co-
accused as recorded under Section 67 of the NDPS Act which is
not legally admissible and cannot be converted into evidence
during the trial of the petitioner. As such, the whole prosecution
case against the petitioner is persecution and not prosecution
and it is clearly violative of fundamental right to liberty which is
being curtailed by the police officials.
5. It is also stated in paragraph no. 2 of the bail
petition that the petitioner has not moved this Court earlier
either for anticipatory bail or regular one in the instant case.
6. It has further been stated in paragraph no.3 of the
bail petition that the petitioner has no criminal antecedents.
7. However, learned APP for the State vehemently
opposes the prayer of the Petitioner for bail. He also refers to
Section 30 of the Evidence Act to submit that confessional
statement of co-accused is relevant and admissible against the
accused petitioner.
8. I considered the submission advanced by both the
parties and perused the material on record.
9. I find that the whole case of the prosecution is
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based on confessional statement of co-accused as recorded
under Section 67 of the NDPS Act.
10. Here it is required to refer to Tofan Singh Vs.
State of T.N. 2021 (4) SCC 1 wherein Hon’ble Supreme Court
has clearly held that the confessional statement of the accused as
recorded under Section 67 of the NDPS Act is not admissible
observing that the powers conferred on the empowered officers
under Sections 41 and 42 of the NDPS Act 1985 read with
Section 67 of the NDPS Act 1985 are limited in nature
conferred for the purpose of entry, search, seizure and arrest
without warrant along with safeguards enlisted thereof. The
“enquiry” undertaken under the aforesaid provisions may lead to
initiation of an investigation or enquiry by the officers
empowered to do so either under Section 53 of the NDPS Act
1985 or otherwise. Thus, the officers who are invested with
powers under Section 53 of the NDPS Act are “police officers”
within the meaning of Section 25 of the Evidence Act, as a
result of which any confessional statement made to them would
be barred under the provisions of Section 25 of the Evidence
Act, and cannot be taken into account in order to convict an
accused under the NDPS Act.
11. In recent judgement of Najmunisha v. State of
Patna High Court CR. MISC. No.31498 of 2025(2) dt.15-05-2025
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Gujarat, 2024 SCC OnLine SC 520, AIRONLINE 2024 SC
306, Hon’ble Supreme Court has again held, relying upon Tofan
Singh Case (supra) that a statement recorded under Section 67
of the NDPS Act cannot be considered to convict an accused
person under the NDPS Act 1985.
12. Here it is also relevant to refer to Dipakbhai J.
Patel Vs. State of Gujrat, (2021) 16 SCC 547. Though this
judgment has been delivered by Hon’ble Supreme Court in the
context of framing of charge, the observation made herein is
relevant even in the present context. Here, Hon’ble Apex Court
has held that the material on the basis of which charge could be
framed must be such material which could be translated into
evidence during the trial. The relevant part of the judgment
reads as follows:
“23. At the stage of framing the charge in accordance with
the principles which have been laid down by this Court,
what the court is expected to do is, it does not act as a
mere post office. The court must indeed sift the material
before it. The material to be sifted would be the material
which is produced and relied upon by the prosecution. The
sifting is not to be meticulous in the sense that the court
dons the mantle of the trial Judge hearing arguments after
the entire evidence has been adduced after a full-fledged
trial and the question is not whether the prosecution has
made out the case for the conviction of the accused. All
that is required is, the court must be satisfied that with the
materials available, a case is made out for the accused to
stand trial. A strong suspicion suffices. However, a strong
suspicion must be founded on some material. The material
must be such as can be translated into evidence at the
stage of trial. The strong suspicion cannot be the pure
subjective satisfaction based on the moral notions of the
Patna High Court CR. MISC. No.31498 of 2025(2) dt.15-05-2025
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accused has committed the offence. Strong suspicion must
be the suspicion which is premised on some material
which commends itself to the court as sufficient to
entertain the prima facie view that the accused has
committed the offence.”
(Emphasis supplied)
13. Similar view has been expressed by Hon’ble
Supreme Court in Karan Talwar Vs. The State of Tamilnadu
(2024) SCC Online SC 3803, holding as follows relying upon
Dipakbhai J. Patel case (supra) :
“10. …………………….There is absolutely no
case that any recovery of contraband was recovered from
the appellant. As regards the confession statement of the
appellant in view of Section 25 of the Indian Evidence
Act, 1872 there can be no doubt with respect to the fact
that it is inadmissible in evidence. In this context it is
worthy to refer to the decision of this Court in Ram Singh
v. Central Bureau of Narcotics, (2011) 11 SCC 347. In
the said decision, this Court held that Section 25 of the
Indian Evidence Act would make confessional statement
of accused before police inadmissible in evidence and it
could not be brought on record by prosecution to obtain
conviction. Shortly stated, except the confessional
statement of co-accused No. 1 there is absolutely no
material available on record against the appellant.
………………………………………………………….
12. As noted hereinbefore, the sole material
available against the appellant is the confession statement
of the co-accused viz., accused No. 1, which undoubtedly
cannot translate into admissible evidence at the stage of
trial and against the appellant. When that be the position,
how can it be said that a prima facie case is made out to
make the appellant to stand the trial. There can be no
doubt with respect to the position that standing the trial is
an ordeal and, therefore, in a case where there is no
material at all which could be translated into evidence at
the trial stage it would be a miscarriage of justice to make
the person concerned to stand the trial.”
(Emphasis supplied)
14. Even reference to and reliance of learned APP
Patna High Court CR. MISC. No.31498 of 2025(2) dt.15-05-2025
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upon Section 30 of the Evidence Act does not help the
prosecution. A careful reading of Section 30 shows that even as
per Section 30, only legally admissible confession of the co-
accused is relevant and admissible against the accused, because
the condition precedent for making the confessional statement
of the co-accused relevant against accused is that there should
be not only a joint trial of the accused along with the co-
accused, even the confessional statement should be such which
could be proved in the trial. Needless to say that inadmissible
confession cannot be proved during the trial. As such,
confession as referred to in Section 30 of the Evidence Act
means only admissible confession and not such confession
which is hit by Section 25 of the Evidence Act.
15. In view of the aforesaid facts and circumstances, I
find that the prosecution case against the petitioner is based only
on inadmissible material which could not be translated into
evidence against the accused/petitioner during his trial. Hence, it
would be travesty of justice to curtail the liberty of the
accused/petitioner under such facts and circumstances.
16. Accordingly, this petition is allowed, directing
the petitioner, above-named, to be enlarged on bail, in the event
of his arrest or surrender before the court below within a period
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of eight weeks from the date of receipt / production of a copy of
this order, on his furnishing bail bonds in the sum of Rs.
10,000 /- (Ten Thousand) with two sureties of the like amount
each to the satisfaction of learned concerned Court Below, in
connection with Banmankhi P.S. Case No. 456 of 2024, subject
to the conditions as laid down under Section 482 (2) of the
B.N.S.S., 2023 and on the following conditions:
(i) In case, it is brought to the notice of the court
below that the petitioner has any criminal antecedents, learned
court below shall cancel the bail bonds of the petitioner after
hearing him and getting satisfied that the petitioner has
concealed his criminal antecedents despite his knowledge of the
same.
(ii) In case, it is brought to the notice of the court
below that statement regarding previous bail petition is wrong,
learned court below shall cancel the bail bonds of the petitioner.
(Jitendra Kumar, J)
shoaib/-
U T AFR/NAFR AFR
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