Point of Law: Section 27 of Evidence Act is applicable only if confessional statement leads to discovery of some new fact.

ORDER :

1. The instant bail application has been filed by the petitioner Sumit S/o Sh. Ramniwas under Section 439 Cr.P.C against the order impugned passed by learned court below in connection with FIR No.108/2022, registered at Police Station Dangiawas, District Jodhpur(east), for the offences under Sections 8/21 of NDPS Act.

2. Learned counsel for the petitioner submits that a false case has been foisted against the petitioner. He has nothing to do with the alleged offences and no useful purpose would be served by keeping him behind the bars. It is the admitted case of the prosecution that neither the petitioner was found present at the crime scene nor any incriminating material or contraband was recovered from his possession. Learned counsel submits that if at the time of effecting the recovery, the principal accused would have disclosed regarding the complicity of the petitioner then it would have been a different situation because instantaneous and spontaneous disclosure regarding alleged transaction may come within the premise of doctrine of res gestae but no such thing was disclosed by the principal accused at that moment in time; the alleged disclosure statement was said to have been made by the principal accused, who stated to the police regarding involvement of the petitioner, but except his confession, nothing has been recovered or discovered, therefore, the contents of the said information cannot be taken into evidence as the same is beyond the arena of Section 27 of the Evidence Act. He submits that for booking an accused for the accusation of the offence committed under Section 29 of the NDPS Act, there must be some corroborative evidence. He have been made accused on the strength of confessional statement made by the co-accused during police custody which is otherwise not admissible in evidence by virtue of Sections 25 and 26 of Indian Evidence Act. The said disclosure statement does not come within the ambit of Section 27 of Indian Evidence Act. It has been propounded by the Privy Council in the case of Pulukuri Kottaya & Ors. Vs. Emperor (AIR 1947 PC 67) that since nothing was discovered or recovered, the disclosure statement made while in custody which distinctly connects the accused-petitioners with the commission of the crime cannot betaken as an admissible piece of evidence. He further submits that after investigation, charge sheet has been filed and the entire charge sheet does not have an iota of evidence against the petitioner except the aforesaid confession, for which, further incarceration of the petitioner cannot be allowed. Since nothing is there on record from which involvement of the accused can be presumed, therefore, the condition under Section 37 of the NDPS Act do not come in way of releasing the petitioners on bail.

3. Per contra, learned Public Prosecutor opposed the bail application on the ground that contraband smack weighing 14 grams and contraband MDMA weighing 218 grams were recovered at the instance of co-accused persons which were sold to them by the petitioner. The recovered contraband MDMA is way above the demarcated commercial quantity.

4. Heard and perused the material available on record. Coming to the question of the ban contained in Section 37 of NDPS Act, it is mandated that untill fulfillment of the twin conditions of this section, bail should not be granted. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such an offence. As far as the contemplation of the first condition is concerned, ample and reasonable opportunity has been sufficiently afforded to the prosecution to protest the bail plea as well as to ensure the completion of trial expeditiously. This court is of the view that at least there must be some corroborations or support to verify the confession made by the principal accused to the Police O