Rajasthan High Court – Jodhpur
Sharif Khan vs State Of Rajasthan (2025:Rj-Jd:36686) on 18 August, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:36686]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 3rd Bail Application No. 2070/2025
Sharif Khan S/o Shri Mazid Khan, Aged About 31 Years, R/o
Jogasar, Tehsil - Bayatu , Dist Barmer (Presently Lodged In Sub
Jail Pindwara)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Dhirendra Singh Sr. Advocate
assisted by Ms. Priyanka Borana
For Respondent(s) : Mr. S.S. Rathore, Dy.G.A.
HON'BLE MR. JUSTICE FARJAND ALI
Order
18/08/2025
1. The jurisdiction of this court has been invoked by way of
filing the instant second 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 281/2023 2. Concerned Police Station Pindwara 3. District Sirohi 4. Offences alleged in the FIR Sections 8/15, 25 & 29 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned 18.10.2024 order 2. His first and second bail application being SBCRLMB
Nos.714/2024 & 10168/2024 were dismissed by this Court vide
orders dated 06.03.2024 & 13.08.2024. Hence, the instant
application for bail.
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3. It is contended on behalf of the accused-petitioner that the
petitioner is arrested in this 02.12.2023 on the basis of statement
of co-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. Upon a meticulous perusal of the record, it emerges that the
petitioner has been incarcerated since 02.12.2023. The sole basis
of his implication in the present case is the statement of a co-
accused, which, by itself, is a weak and fragile piece of evidence in
the absence of any independent corroboration. It is pertinent to
note that the petitioner was not apprehended at the scene of
occurrence, nor has any incriminating recovery been effected from
his conscious possession. Thus, the allegation of his complicity in
the alleged transportation of contraband appears to rest merely
upon conjecture and unsubstantiated assertion, lacking any
cogent evidentiary foundation.
6.1. The Court cannot be oblivious to the fact that, despite the
considerable lapse of time, the trial has made little headway.
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Though charges have been framed, and proceedings technically
commenced, out of a total seventeen witnesses cited by the
prosecution, merely two have been examined till date. This delay
stands further compounded by the filing of a supplementary
charge-sheet on 11.02.2025, implicating one Shakur Khan, which
has necessitated the initiation of a de novo trial. The prospect of
the trial culminating in the foreseeable future is, therefore, bleak
and remote.
6.2. In such circumstances, the continued detention of the
petitioner would amount to punitive pre-trial incarceration rather
than preventive custody, which is impermissible in law. The
Hon’ble Supreme Court has consistently held that the right to
speedy trial is an integral facet of the guarantee of life and
personal liberty under Article 21 of the Constitution of India
(Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369; Kadra
Pahadiya v. State of Bihar, 1981 Supp SCC 308; Satender Kumar
Antil v. CBI, (2022) 10 SCC 51). Prolonged incarceration without
progress in trial not only militates against the settled principles of
criminal jurisprudence but also renders nugatory the fundamental
presumption of innocence until proven guilty.
7. There exists no legally admissible evidence on record directly
connecting the petitioner with the alleged offence, save and
except for the statement allegedly made by a co-accused who was
apprehended at the spot. According to the said co-accused, the
individual who managed to flee from the scene prior to the arrival
of the police and before the apprehension of the other accused
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persons was none other than the petitioner. However, such a
disclosure made by a co-accused, in isolation and unsupported by
any corroborative material, cannot, by itself, be treated as
sufficient evidence to justify the continued and indefinite
incarceration of another person. The evidentiary worth of this
assertion stands further diluted by the fact that the said co-
accused has subsequently retracted and contested the statement.
At best, the position that emerges is that the Seizing Officer has
deposed that the co-accused informed him about the alleged
presence of the petitioner at the spot. The Seizing Officer,
therefore, had no direct or independent knowledge of the
petitioner’s alleged presence at the scene of occurrence. His
reference to the petitioner is purely derivative in nature, being
founded solely upon the version supplied to him by another
accused. The probative value of such derivative and
uncorroborated disclosure is a matter that shall fall for
determination before the learned Trial Court in accordance with
law.
8. As per the law, while keeping an accused detained, the
opportunity to the prosecutor to lead evidence can only be given
for a reasonable period. The wider connotation of the phrase
‘reasonable period’ be understood to be one year because the case
is classified as a sessions case which would mean that the like
cases should commence and conclude within a session, that is,
one year. Even if an elastic interpretation of the expression
‘reasonable period’ is taken on the pretext of certain unavoidable
circumstances, then it can only be doubled and even in that
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situation, trial has to be completed within two years while keeping
an accused in custody. Suffice it would to say that for the purpose
of determination as to whether the accused is guilty or not, only a
reasonable period can be awarded to the prosecutor if the accused
is behind the bars. The cases which are classified as session case
are purposefully directed to be heard by senior officer of District
Judge Cadre looking to his experience and rank/grade/post. In
criminal jurisprudence prevalent in India, there is a presumption
of innocence working in favour of the accused until he is proven
guilty in the trial. The trial is conducted for the purpose of
affording an opportunity to the prosecutor to prove the charges
and only for the purpose of proving guilt or adducing evidence on
record, an unreasonable period of time cannot be granted as the
same infringes the fundamental rights of an accused which are
otherwise guaranteed by the Constitution of India. While
entertaining a bail plea the Court of law is required to take into
account the above-mentioned aspect of the matter as well beside
the gravity of offence and quantum of sentence.
9. The prosecution in this case against the petitioner has been
launched by invoking Section 29 of the NDPS Act. I am of the
opinion that 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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12. 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
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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.
13. 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 any recovery has been affected at the
instance of the present petitioner.
14. 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
02.12.2023 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 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. But strangely, here in this case, nowhere the principal
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accused from whom the contraband got recovered ever named
the petitioner. 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
looking to the long period of incarceration. The paragraphs of
Mohd. Muslim @ Hussain (supra) relevant to the present
matter are reproduced below:
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“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
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.
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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. in view of the
absence of any recovery from the petitioner, his non-presence at
the scene of occurrence, and the remote prospect of the trial
reaching its conclusion within a reasonable period, this Court
finds no justification for subjecting the petitioner to an indefinite
and uncertain incarceration. Although no elaborate arguments
have been advanced on behalf of the petitioner, the fact remains
that once the accused is in custody, the burden lies not upon him
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to establish his innocence but upon the prosecution to justify the
necessity of his continued detention. It is in this backdrop that
this Court has carefully scrutinized the factual matrix of the case
as well as the manner in which the proceedings have been
conducted. The settled principle of law is that personal liberty,
being a cherished constitutional guarantee under Article 21 of the
Constitution of India, cannot be curtailed except in strict
conformity with statutory safeguards. Where surrounding
circumstances are found to be in consonance with such statutory
stipulations, the accused cannot be relegated to a prolonged and
indefinite confinement merely on account of pendency of trial. In
light of the foregoing considerations, this Court is of the
considered opinion that the petitioner deserves to be extended
the benefit of bail.
15. Accordingly, the instant third 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
51-Mamta/-
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