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Rajasthan High Court – Jodhpur
Satyanarayan vs State Of Rajasthan (2025:Rj-Jd:33858) on 30 July, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:33858]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 5225/2025
Satyanarayan S/o Lheru Jat, Aged About 35 Years, R/o
Sargaon,police Station Gangapur,district Bhilwara Raj. (Lodged
In District Jail,bhilwara)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Bhagirath Ray Bishnoi
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
30/07/2025
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 208/2023 2. Concerned Police Station Gangapur 3. District Bhilwara 4. Offences alleged in the FIR Sections 8/20 & 29 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned 19.04.2025 order
2. The concise fact of the case are that on 11.06.2023,
Narendra Kumar Jain, Station House Officer, Gangapur, acting on
specific intelligence, issued a pamphlet outlining a coordinated
blockade operation. During the said operation at the Bholikhanda
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border, a Maruti Swift vehicle bearing registration number RJ-51-
CA-5279 was intercepted, followed closely by a Brezza car
registered as RJ-27-CE-9442. Both vehicles were halted as per
procedural norms.
2.1 Upon inquiry, the individuals traveling in the Swift car
identified themselves as Lokesh, Sanjay, and Nirmal, while the
occupants of the Brezza car disclosed their names as Rajendra
Chaudhary and Shivlal. A search of the Brezza vehicle, conducted
in accordance with legal formalities, resulted in the recovery of
ganja stored in multiple plastic bags. The total net weight of the
contraband was determined to be 169.460 kilograms. Further
investigation revealed that the Maruti Swift was serving as an
escort vehicle to facilitate the illegal transportation.
2.2. Consequently, based on the contents of the pamphlet and
findings at the scene, a formal FIR was registered, leading to the
arrest of all accused persons. During the custody of co-accused
they disclosed the name of present petitioner and on the basis of
confessional statement, he has been arraigned as an accused in
this matter and a case under Section 8/20 & 8/29 of the NDPS Act
has been registered against him. His earlier bail application being
SBCRLMB No.4541/2024 was disposed of by this Court vide order
dated 03.05.2024. Hence, the instant application for bail.
3. It is contended on behalf of the accused-petitioner that the
petitioner is arrested on the basis of statement of co-accused
person, 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
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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 for more than one and half years. The SHO,
PS Gangapur along with his team effected search and six plastic
sacks containing ganja weighing a total of 169.460 kg (including
sack weight) were recovered from the field.
6.1. The material on record unmistakably reveals that the
petitioner was not present at the scene of the alleged search and
seizure of the contraband. His implication in the present case is
solely predicated upon the confessional statement made by a co-
accused during custodial interrogation before a police officer. This
statement, recorded in the course of police investigation,
constitutes the solitary basis for arraigning the petitioner as an
accused.
6.2. Crucially, no independent or corroborative evidence–either
direct or circumstantial–has been brought on record to establish
the petitioner’s involvement in the alleged offence. The
prosecution has not demonstrated any nexus between the
petitioner and the recovered substance, nor has it produced any
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witness or documentary proof linking him to the offence, apart
from the inadmissible custodial statement of a co-accused.
6.3. It is trite law that a confessional statement made by a co-
accused before the police, in the absence of recovery or
corroboration, is inadmissible under Section 25 and 26 of the
Indian Evidence Act, and cannot form the foundation for
conviction or even for drawing an adverse inference against
another individual. In the instant case, the petitioner’s arrest
appears to be a consequence of mechanical and uncritical reliance
on such inadmissible material, in clear contravention of settled
legal principles.
7. 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.
8. 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
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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.”
9. 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.
10. 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:-
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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 abetement or in pursuance of the criminal
conspiracy hatched by them.
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11. 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.
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(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.
12. 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 either there had been a meeting between
the petitioner and the principal accused 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.
13. 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 for last
one and half year 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
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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.
14. 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
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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 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
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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
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supposed to establish a case in support of his innocence rather
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.
15. 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
69-Mamta/-
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