Rajasthan High Court – Jodhpur
Sumer Singh vs State Of Rajasthan (2024:Rj-Jd:52207) on 11 December, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:52207]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 15051/2024
Sumer Singh S/o Sh. Gulab Singh, Aged About 30 Years, R/o
Jansingh Ki Beri , P.s. Girab Dist Barmer. (At Present Lodged In
Sub Jail , Suratgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Miscellaneous Bail Application No. 15052/2024
Madhu Singh @ Madho Singh S/o Taneraj Singh, Aged About 52
Years, R/o Bankidas Ki Dhani Myajlar, P.s. Jhinjhaniyali, Dist
Jaisalmer. (At Present Lodged In Sub Jail Suratgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Dalip Singh Rajvi
Mr. Vikas Joshi
Mr. Kailash Chandra Bishnoi
For Respondent(s) : Mr. Lalit Kishore Sen, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
11/12/2024
1. The jurisdiction of this Court has been invoked by way of
filing the instant bail applications under Section 439 Cr.P.C. 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 237/2023 2. Concerned Police Station Suratgarh (Downloaded on 27/12/2024 at 10:26:38 PM) [2024:RJ-JD:52207] (2 of 13) [CRLMB-15051/2024] 3. District Ganganagar 4. Offences alleged in the Section 8/21 & 25 of the FIR NDPS Act 5. Offences added, if any Section 8/29 of the NDPS Act 6. Date of passing of 19.10.2024 impugned order (SBCRLM 2nd B No.15051/2024) 6.A Date of passing of 18.11.2024 impugned order (SBCRLM 2nd B No.15052/2024)
2. The first bail application being SBCRLMB No.11278/2023
filed on behalf of petitioner Sumer Singh was dismissed by this
Court vide order dated 10.05.2024. While rejecting the earlier
bail application, the petitioner was afforded liberty to renew the
prayer for bail afresh after recording the statement of Seizing
Officer. Now the statement of Seizing officer has been recorded.
Hence, the instant bail application.
3. Briefly stated that facts of the case are that on 02.05.2023,
near National Highway No.62, during patrolling the police team
intercepted a Motorcycle bearing RJ07 SJ1165, which was being
driven by Sunil Kumar whereas Khet Singh and Bhutta Singh were
the pillion riders. During search, from the utility box of the
Motorcycle 7 polythene-bags containing Heroine were recovered.
The weight of the recovered contraband was 470 grams. Upon
interrogation, they disclosed the name of present petitioners and
on the basis of their statements, the petitioners have been
arraigned as an accused. During investigation, they were arrested
and since then they are in judicial custody.
4. 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. They have been made accused on
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the basis of statement of co-accused. No recovery has been
affected at their instance. 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.
5. 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.
6. I have considered the submissions made by the parties and
have perused the material available on record.
7. Though the first bail application of the petitioner-Sumer
Singh was rejected by this Court vide order dated 10.05.2024 but
the petitioners have filed instant bail application because out of
total 25 witnesses, only few witnesses have been examined in the
trial till date, thus, looking to the snail pace progress of the trial,
he has again approach this Court for protecting his liberty.
8. Now it is not in dispute that the petitioners Sumer Singh and
Madhu Singh @ Madho Singh are behind the bar in this case since
03.05.2023. It is a case of the prosecution that petitioners was
apprehended on the basis of statements of co-accused. The
charge-sheet has been filed way back and the trial has also been
commenced long ago but no endeavours have been made to
conclude it.
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
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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 petitioners, 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:-
“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
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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 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:-
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(Downloaded on 27/12/2024 at 10:26:38 PM)
[2024:RJ-JD:52207] (6 of 13) [CRLMB-15051/2024]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.
13. 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.
14. 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–
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.
15. 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.
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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
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.
16. 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
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the petitioner and the principal accused or there was any
exchange of calls between them 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. No meeting,
no CDR, no text, no messages, no recording, no piece of paper, no
letter, no evidence regarding presence of both, the principal
accused and the petitioners at a common place is on record.
17. 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
03.05.2023 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 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 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.
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18. The present petitioners had been made accused in this case
on the basis of confessional statement of the principal-accused
and to connect the present petitioners to the alleged recovery.
Efforts have also been made to connect the petitioners 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 petitioners 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 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.
19. 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
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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
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
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[2024:RJ-JD:52207] (11 of 13) [CRLMB-15051/2024]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)
20. 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
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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.
21. 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 one and half 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 are in custody, this Court
feels that the accused are not supposed to establish a case in
support of his innocence rather their detention is required to be
justified at the instance of the prosecution, therefore, this court
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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 them 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.
22. Considering the overall facts and circumstances of the case
and the fact that the petitioners are incarcerated from last more
than one and half years and looking to the fact that out of total 25
witnesses till date only few of the witnesses have been examined
there seems high probability that the trial may take long time to
conclude thus, it is deemed suitable to grant the benefit of bail to
the petitioners.
23. Accordingly, the instant bail applications under Section 439
Cr.P.C. is allowed and it is ordered that the accused-petitioners 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
442-Mamta/-
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