Confessions made in police custody require corroboration to be admissible; mere disclosure without recovery does not establish a connection to the crime.

Order

18/01/2024

1. The jurisdiction of this court has been invoked by way of filing an instant 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 several flaws and laches in the case of the prosecution. 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. He has been made accused on the strength of confessional statement allegedly made by 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. Since nothing is there on record from which involvement of the accused can be presumed, therefore, the embargo under Section 37 of NDPS Act do not come in way of releasing the petitioners on bail. 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. Per contra, learned Public Prosecutor opposes the bail application and submits that the alleged recovered contraband is way above the demarcated commercial quantity, thus, the impediment contained under Section 37 of NDPS Act will be attracted in the factual situation of the present case.

4. Heard and perused the material available on record. It is an admitted case of the prosecution that when the search and seizure was conducted the petitioner was not present in or near the car from which the recovery has been affected. It is alleged that the said principal-accused disclosed this fact to the I.O. that the present petitioner sold the contraband to him. However, no connecting evidence has been produced so as to add direct nexus between the petitioner and other persons from whom the contraband was recovered. In the case at hand, nothing has been recovered from the present petitioner and no other legally admissible evidence that could connect the petitioner to the crime or to the other co-accused persons for that matter has come to the fore, thus, the disclosure statement of the co-accused in police custody on the basis of which the present petitioner has been made an accused in this case remains just illusory knowledge and does not become a fact proved as no fact has been discovered in consequence of the information disclosed by the co-accused, thus, it cannot be said with certainty that the accused can be roped in for commission of offence under Section 29 of the NDPS Act.

5. 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.

6. 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 cause of the discovery would be co