The J&K High Court reprimanded the party for challenging an order which was subject matter of challenge in some other court.
As per the prosecution case, Police Station, Bijbehara, received information that one person, namely, Sabzar Ahmad Dar has concealed some contraband substance in his residential house with a view to sell the same to the youth. On the basis of this information, FIR was registered and investigation was set into motion. During investigation of the Bail Application case, residential house of accused Sabzar Ahmad Dar was searched and from there 2600 bottles of Welcyrex containing Codeine Phosphate came to be recovered and seized. The samples of the recovered contraband were sealed and sent to FSL, Srinagar, for chemical examination. Accused Sabzar Ahmad Dar came to be arrested. During his custodial interrogation, he disclosed that the said contraband drug was kept in his house by accused Zahid Ahmad Dar and Mudasir Ahmad Dar. Accused Zahid Ahmad Dar came to be arrested and during his custodial interrogation, he made a disclosure statement that he along with Mudasir Ahmad Dar had concealed the contraband drugs in the residence of co-accused Sabzar Ahmad Dar. Accused Zahid Ahmad Dar made a further statement that the said contraband drugs were actually purchased by him from accused Rayees Ahmad Dar, the petitioner. It appears that the petitioner had approached the Court of Principal Sessions Judge, Anantnag, for grant of bail but the application came to be dismissed by the said Court in terms of its order.
Counsel for the petitioner contended that a statement made by a person while in police custody in the presence of police officials, even if recorded in the presence of an Executive Magistrate, is not admissible in evidence.
Counsel appearing for the respondents submitted that Section 26 of the Evidence Act carves out an exception to Section 25 of the said Act, inasmuch as it makes confession of an accused in police custody admissible in evidence if the same has been recorded in presence of a Magistrate.
The single judge bench of Justice Sanjay Dhar stated that the confessional statement of an accused is under consideration. The confessional statement of an accused recorded during investigation or inquiry or trial of a case exposes such person to punishment, penalty or detention in custody and has the effect of sending him to trial before the court. Therefore, unless the context otherwise suggests, the expression „Magistrate‟ appearing in any law other than the Code of Criminal Procedure has to be construed as Judicial Magistrate.
The court said that this view is further strengthened from the fact that the provisions contained in Section 164 of the Cr. P. C, which deals with the recording of confessions and statements, clearly provides that it is only a Metropolitan Magistrate or the Judicial Magistrate who is empowered to record the confession or statement made in the course of an investigation or even afterwards before the commencement of the inquiry or trial.
The court observed that prima facie, there appears to be no material on record of the Case Diary that can be converted into legal evidence to connect the petitioner with the alleged crime. The respondents have not placed on record anything to show that the petitioner, if enlarged on bail, would commit similar offences. Thus, the petitioner has been able to carve out a case for grant of bail in his favour.
The court granted bail to the petitioner on certain conditions.
Case title: Rayees Ahmad Dar v/s Union Territory of J&K
Citation: Bail App No.05/2022