Bhupendrasinh Jeevansinh Vora @ Bhupi @ Bhupendrasingh Jeevansingh Bora v. State Of Maharashtra

Amberkar IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO. 3547 OF 2024 Bhupendrasinh Jeevansinh Vora @ Bhupi @ Bhupendrasingh Jeevansingh Bora .. Applicant

Versus

State of Maharashtra .. Respondent ....................

 Ms. Tahera Qureshi for Applicant  Ms. Shilpa K. Gajare-Dhumal, APP for State ...................

CORAM : MILIND N. JADHAV, J.

DATE : FEBRUARY 21, 2025 P. C.

:

1.

Heard Ms. Qureshi, learned Advocate for Applicant and Ms. Gajare-Dhumal, APP for State.

2.

Applicant is indicted in crime which is registered on 23.10.2004. Initially there were 4 accused, however subsequently several other accused persons were arraigned as accused in the crime on the basis of disclosures made by the co-accused. In so far as the Applicant is concerned, he was arrested in the present crime on 29.09.2023 while being in custody since 2010 onwards in some other crime. 3.

Ms. Qureshi would submit that the arrest of the Applicant on 29.09.2023 is on the basis of a confessional statement of the one of the co-accused i.e. accused No. 8 made in the year 2011. She would persuade the Court to see the judgment dated 06.05.2016 which is

appended at page Nos. 13-37 (Exh. A) to the Application setting aside the charge of the prosecution on application of MCOC Act on the accused in the present crime. She would therefore submit that in that view of the matter, the mere statement of the co-accused i.e. accused No. 11 to indict the Applicant in the present crime is merely based upon his confessional statement which needs to be considered for grant of bail of the Applicant in the present crime. 4.

In the case of Phundreimayum Yas Khan Vs. State (NCT of Delhi)1 the Delhi High Court has observed that disclosure statement of co-accused is per se not admissible without there being any corroboration thereof. Relevant paragraph No.24 of the said judgement reads thus:- "24. The case of the prosecution, in so far as the applicant is concerned, is circumstantial, i.e. based solely on disclosure statement of the co-accused Sayed Javed Hussain which is per se not admissible without there being any corroboration. The prosecution has not been able to establish any connection between the subject offence and the location/CDRs of the accused persons, where the applicant is alleged to be present at the time when the contraband was collected by Sayed Javed Hussain. Merely because the applicant had been having frequent calls with the co-accused, would not be sufficient to hold that applicant is guilty of the subject offence."

5.

In the case of Jasbir Singh Vs. Narcotics Control Bureau2 the Delhi High Court in paragraph Nos.63, 67 and 68 of its judgment while interpreting Section 67 of the NDPS Act vis-a-vis Sections 25 and 2023 SCC OnLine 135 (2023) SCC OnLine Del 134

27 of the Indian Evidence Act, 1872 in regard to confessional statement held as under:- "63. As statements recorded under Section 67 NDPS Act are inadmissible being hit by Section 25 IEA, the only way to make any part of such statements admissible, is by way of Section 27 IEA which creates an exception and allows only such part of a confessional statement, being information leading to discovery of some fact not previously in the knowledge of the police officer. In the present case, none of the statements of the Applicant lead to any discovery of a fact , and hence, the ‟ statutory bar to their admissibility and reliability is attracted. 64.

*** 65.

*** 66.

*** xxxxx

67. With regards to applicability of Section 27 IEA, the fact so discovered is admissible when accompanied by the recovery of a material object and does not include purely mental or psychological facts. It is relevant to note the observations of this Hon ble Court in State v. Navjot Sandhu @ Afsan Guru Crl. A. ‟ No. 80/2003 wherein this Hon ble Court, after placing reliance ‟ on Pulukuri Kottaya and Ors v. The King-Emperor 1946 SCC OnLine PC 49, and several other judgments of the Hon ble ‟ Supreme Court and other courts, summarized the law governing Section 27 IEA as follows:

"396. We, therefore, hold that in order that Section 27 may be brought in aid, the prosecution must establish:-

1. That consequent to the information given by the accused, it led to the discovery of some fact stated by him.

2. The fact discovered must be one which was not within the knowledge of the police and the knowledge of the fact was for the first time derived from the information given by the accused.

3. Information given by the accused must lead to the discovery of a fact which is the direct outcome of such information.

4. The discovery of the fact must be in relation to a material object and of course would then embrace within its fold the mental condition i.e. the knowledge of the accused of the place from where the object was produced and the knowledge that it was there.

5. Only such portion of the information as is distinctly connected with the said discovery is admissible.

6. The discovery of the fact must relate to the commission of some offence."

68. Therefore, for any part of the alleged disclosures of the Applicant to be admissible, it was necessary that such disclosure led the Respondent to recovery of any contraband, or any other 'fact' related to the alleged offences. Given that none of the disclosures of the Applicant, except (at best for the recovery of a contraband involving quantity lesser than small quantity) led to the discovery of any object, or a "new fact" thereby, such disclosures under section 67 NDPS Act are held inadmissible in evidence."

6.

The Supreme Court in the case of Tofan Singh Vs. State of Tamil Nadu3 Court held that statements recorded by NDPS officers could be construed as statements to police officers given their duties and responsibilities in preventing and detecting crime under the NDPS Act. It held that right against self-incrimination and right to privacy under Article 20(3) and Article 21 of the Constitution apply to confessions recorded under Section 67 of the NDPS Act. It also held that officers under the NDPS Act should be construed as 'police officers' under Section 25 of the Evidence Act to prevent coercion in recording confessions and that confessions made before such officers are inadmissible as evidence to protect fundamental rights under Articles 20(3) and 21 of the Constitution.

7.

Apart from the submissions made by Ms. Qureshi regarding confessional statement of the co-accused being used to indict the Applicant which is the only material placed on record by the (2021) 4 SCC 1

prosecution, she would submit that this Court should also consider the long incarceration of the Application. Considering that since 2010 Applicant has already being incarcerated in prison for being indicted as under-trial accused pending trials, prima facie it is seen that Applicant has been incarcerated in jail since 2010 in the present offence as his date of arrest is 29.09.2023.

8.

Learned APP shall take appropriate instructions on the aforesaid submissions and apprise the Court on the next adjourned date. 9.

Stand over to 7th March, 2025. To be placed on Supplementary Board.

Amberkar [ MILIND N. JADHAV, J. ] by RAVINDRA MOHAN AMBERKAR Date:

2025.02.21 19:56:04 +0530 RAVINDRA MOHAN AMBERKAR