At the pre-conviction stage, bail is the rule, and denial is an exception, especially when evidence is insufficient and confessions are inadmissible.

Order

17/01/2024

1. The jurisdiction of this court has been invoked by way of filing 3rd application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

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 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. Have considered the submissions made by both the parties and have perused the challan papers and the other material available on record. It is the case of the prosecution that certain quantity of contraband got recovered from the accused Amzad Khan when he was intercepted by the police. The basis of booking the petitioner and taking him into custody has been his statement recorded under Section 67 of the NDPS Act in which he allegedly admitted that he used to work with Amzad Khan as a partner in the business of illicit transport of contraband. No independent evidence or Call data record has been found. Except above one, there is no direct or indirect evidence against him, the only piece of evidence relied upon by the prosecution is the confessional statement of petitioner recorded under Section 67 of the NDPS Act which is otherwise not admissible in view of the judgment passed by the Hon’ble Apex court in the matter of Toofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1 . Otherwise also, the confession is hit by Sections 25 & 26 of the Indian Evidence Act.

It is not comprehensible that who will come in the witness box during the trial to depose against the petitioner except the Investigating Officer, who may say that the accused made a confession before him. What would be evidentiary value of the statement of the Investigating Officer is a highly disputed question, which this Court do not want to decide at this stage as the same may cause prejudice to the parties to the litigation.

6. I have seriously pondered over the fetter contained under Section 37 of the NDPS Act but convinced that in the given circumstances, the embargo put in the above provision would not be an impediment in granting bail to the petitioner since he is behind the bars and trial has not been commenced yet, it can be assumed that the culmination would surely take a long time. In light of these facts and circumstances, it is deemed suitable to grant the benefit of bail to the petitioner in the present matter. Needless to say, none of the observations made herein under shall affect the rights of either of the parties during trial and this Court refrains from commenting on the niceties of the matter.

6. At a pre-conviction stage; bail is a rule and denial from the same should be an exception. The purpose behind keeping an accused behind the bars during trial would be to secure his presence on the day of conviction and that he may receive the sentence as would be awarded to him. Otherwise, it is the rule of Crimnal Jurisprudence that he shall be presumed innocent until the guilt is proved.

7. Accordingly, the instant bail application under Section 439 Cr.P.C. 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 date