Rajasthan High Court – Jodhpur
Mukesh Alias Sawaria vs State Of Rajasthan (2025:Rj-Jd:31991) on 18 July, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:31991]
+03
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 8615/2025
Mukesh Alias Sawaria S/o Badri Ram, Aged About 30 Years, R/o
Bera Nagar Pal Vilage, Police Station Boranada, Jodhpur
(Petitioner Is Lodged In Central Jail Jodhpur Since 15.09.2024)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Pranjul Mehta
For Respondent(s) : Mr. S.S. Rathore, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
18/07/2025
1. The jurisdiction of this court has been invoked by way of
filing the instant 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 295/2023 2. Concerned Police Station Luni 3. District Jodhpur City 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 20.05.2025 order
2. In nutshell the facts of the case are that on 27.09.2023,
during a routine blockade conducted at approximately 11:00 PM
near Seth Sanwariya Hotel on Pali Road by the SHO, Police Station
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Luni, Jodhpur, accompanied by the police force, a truck bearing
registration No.RJ 26/GA-5858, arriving from the Pali side, was
intercepted. Upon inquiry, the driver identified himself as Sharif,
and the co-driver disclosed his name as Abdul Shakoor. Upon
conducting a thorough search of the vehicle, 290 sacks containing
a total of 3625 kilograms of illegal poppy husk were recovered.
The contraband seizure was duly recorded in the recovery memo,
and the investigation report corroborates the illicit nature of the
recovered substance. As per Factual Report No. 1433 dated
19.05.2025 and the entries in the case diary maintained by the
SHO, Police Station Luni, it has been confirmed that no prior
criminal case has been registered against the applicant/accused
under the Narcotic Drugs and Psychotropic Substances Act (NDPS
Act).
2.1. Furthermore, during the course of investigation, while in
police custody, the principal accused made a disclosure statement
under Section 27 of the Indian Evidence Act, in which he
specifically named the applicant/accused as one of the co-
conspirators. In his statement, he revealed that he, along with his
associates Sharif and Abdul Shakoor, procured 3625 kilograms of
illegal poppy husk from one Kapil Manjhi in Jharkhand and
transported it in the truck bearing registration number RJ 26/GA-
5858 to the intended destination, where the vehicle was ultimately
intercepted. As per the prosecution, this incriminating disclosure,
duly recorded in accordance with law, constitutes a substantive
piece of evidence connecting the applicant to the commission of
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the offence, and on the strength of which the present applicant
was apprehended. Hence, the instant bail application.
3. It is contended on behalf of the accused-petitioner that the
petitioner is arrested in this 15.09.2024 on the basis of statement
of principal accused, however he was not present at the spot thus,
no case for the alleged offences is made out against him and his
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-
petitioner and he has been made an accused based on conjectures
and surmises.
4. Contrary to the submissions of learned counsel for the
petitioner, learned Public Prosecutor opposes the bail application
and submits that the present case is not fit for enlargement of
accused on bail.
5. Have considered the submissions made by both the parties
and have perused the material available on record.
6. Perusal of the record revealing that the petitioner is behind
the bars in this case since 15.09.2024. He has been made accused
on the basis of statement of principal-accused. Neither the present
petitioner was present at the spot nor any recovery has been
affected from his possession. The petitioner is lying behind the
bars on the baseless allegations of his indulging in transportation
of illegal contraband.
7. the petitioner has been roped in this matter solely on the
basis of disclosure statement of principal accused. If it is an
information under Section 27 of the Evidence Act, something is
required to be recovered or discovered in pursuance of the
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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.
8. 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.
9. 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
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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
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 abetes 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
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consequence of such abetement or in pursuance of the criminal
conspiracy hatched by them.
10. Abetement 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.
From the above, it is revealing that a person abetes 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 abetement was committed.
The other aspect of the provision is that if a person, while abeting
the other intentionally aids or assists in doing the thing by any of
his act or illegal omission, he is an accused of abetement.
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(Downloaded on 23/07/2025 at 09:30:38 PM)
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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 tobe 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.
11. What is emanating from the provision of abetement or
conspiracy that there has to be an act of abetement 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 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.
12. 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
15.09.2024 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 abeted or was in conspiracy with the principal
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accused. Had it been the case that soon after or at the time of
recovery of the contraband; the principal accused made a
disclosure regarding involvement/participation of the accused, if
the same was disclosed by him, then the fact situation may be
different. What would be the basis for the trial of this accused?
Whether only the assertion of the police officer that petitioner is
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.
13. 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
looking to the long period of incarceration. The paragraphs of
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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 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
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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)
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
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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. In view of the above, it is
deemed suitable to grant the benefit of bail to the petitioner.
14. 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 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.
(FARJAND ALI),J
161-Mamta/-
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