Rajasthan High Court – Jodhpur
Gani Khan vs State Of Rajasthan (2025:Rj-Jd:35823) on 12 August, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:35823]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 8248/2025
Gani Khan S/o Late Jamme Khan, Aged About 30 Years, R/o
Solankiyon Ki Dhani, Police Station Bajju, District Bikaner
(Lodged In Dist. Jail, Bikaner)
----Petitioner
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent
For Petitioner(s) : Ms. Shobha Prabhakar
For Respondent(s) : Mr. Hathi Singh, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
12/08/2025
1. The jurisdiction of this Court has been invoked by way of
filing an application under Section 439 Cr.P.C./483 BNSS 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 59/2024
2. Concerned Police Station Pugal
3. District Bikaner
4. Offences alleged in the FIR Under Sections 8/15, 25,
29 of NDPS Act
5. Offences added, if any -
6. Date of passing of impugned 08.05.2025
order
2. 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. There are no factors at play in
the case at hand that may work against grant of bail to the
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accused-petitioner and he has been made an accused based
on conjectures and surmises.
3. 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.
4. I have considered the submissions made by both the parties
and have perused the material available on record.
5. After rejection of second bail application Seizing Officer has
been examined in the trial. I have also gone through his
statement recorded during trial. It is the case of the
prosecution that for around one hour, right from 4:00 AM to
5:00 AM, the police party was chasing the vehicle for purpose
of intercepting it and as a matter of fact, when the co-
accused Chandraveer Singh was apprehended after stoping
the vehicle, the police team found no other person except
Chandraveer Singh. It is not the case of the prosecution that
one person made his escape good by fleeing from the spot
after noticing the approach of police rather only one accused
was found there. It is stated that during the course of
investigation, when the accused Chandraveer Singh was
interrogated he made discloser to the police officer that he
was accompanied by the petitioner also, but he had fled away
from the spot by leaving the vehicle. As a matter of fact,
there is not a tissue of evidence to bolster the confessional
statement made by Chandraveer Singh to a police officer
while in police custody that the other person was the
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petitioner. This Court feels that to rely upon the statement of
co-accused who is under detention, there must be some
corroborative supportive evidence so as to justify the
detention of the other accused.
6. This Court has dealt with like issue elaborately in the case of
Mukesh v. State Of Rajasthan in S.B. Criminal
Miscellaneous Bail Application No. 8615/2025. For
ready reference, the relevant paragraphs of the bail order are
reproduced herein below:-
"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 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 consequence of such
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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 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.
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
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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 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 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(Downloaded on 13/08/2025 at 09:52:24 PM)
[2025:RJ-JD:35823] (6 of 7) [CRLMB-8248/2025]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 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 his detention is required to be justified
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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.”
7. In view of the above, this Court feels that embargo contained
under Section 37 of NDPS Act would not come in way of
granting bail to the petitioner. There is high probability that
the trial may take long time to conclude. In light of these
facts and circumstances, it is deemed suitable to grant the
benefit of bail to the petitioner in the present matter.
8. Accordingly, the instant bail application under Section 439
Cr.P.C./483 BNSS 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.
(FARJAND ALI),J
38-chhavi/-
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