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2014 DIGILAW 1140 (MP)

Suresh Upadhyay v. State of M. P.

2014-09-11

D.K.PALIWAL

body2014
JUDGMENT D.K. Paliwal, J. 1. With the consent of learned counsel for the parties, the matter is heard finally. 2. This petition has been filed under Section 482 of Cr.P.C. for quashing the FIR registered at Crime No. 51/2012 under section 34(2) of M.P. Excise Act at Police Station Banmore, District Morena. 3. Brief facts of the case are that on receipt of information A.S.I. P.S. Parmar who was posted at Police Station Banmore reached the house of Meena Jatav along with police force and on being checking 97 boxes of Silver Jet Whiskey were found and there was no license of the same, hence, the aforesaid liquor was seized and case was registered. During investigation, Meena Jatav disclosed that the liquor which has been found belongs to Narendra Pal Tomar, Banwari and Suresh Upadhyay. A memorandum to this effect under section 27 of the Evidence Act has been recorded and on the basis of aforesaid statement the petitioner has been implicated as accused. 4. Learned counsel for the petitioner submits that no recovery has been made from the possession of the petitioner and further the petitioner was also not present at the time of alleged seizure. On the basis of the statement recorded under section 27 of the Evidence Act, the petitioner cannot be prosecuted because that information cannot be used against the petitioner. In absence of legally admissible evidence the petitioner cannot be prosecuted and the continuance of prosecution would tantamount to be an abuse of process of law. It is further submitted that the coordinate Bench of this Court in a petition filed by Narendra Pal Singh Tomar which was registered as M.Cr.C. No. 1262/2014 has quashed the FIR, hence, it is prayed for quashing the FIR registered against the petitioner. 5. Learned Public Prosecutor submits that looking to the prima facie material against the petitioner, the FIR cannot be quashed. 6. I have considered the rival submissions of the learned counsel for the parties and perused the case diary. 7. From the case diary it appears that no recovery has been made from the possession of the petitioner and the petitioner has also not present at the time of alleged seizure. The only piece of evidence available in the case diary is the statement of co-accused Meena recorded under section 27 of the Evidence Act. 7. From the case diary it appears that no recovery has been made from the possession of the petitioner and the petitioner has also not present at the time of alleged seizure. The only piece of evidence available in the case diary is the statement of co-accused Meena recorded under section 27 of the Evidence Act. So far as the use of statement of co-accused under section 27 of the Evidence Act is concerned, this Court in the case of Prakash Singh Vs. State of M.P. 1994 (II) MPWN 72 has held as under : "The statements admissible under Section 27 of the Evidence Act are the statements which could be used as evidence against the maker and not against any other person. Under section 27 only portions of information given by an accused which are admissible are those which relate distinctly to the facts discovered thereby. Consequently statements by an accused which do not relate to aforesaid facts but involve other accused are inadmissible under section 27 against the later". 8. Further, in the case of Raghu Thakur Vs. State of M.P., : 2012 (4) MPHT 116, it has been held as under: "A plain reading of Section 27 of Indian Evidence Act indicates that the statement under Section 27 of Indian Evidence Act is an exception to the ban imposed upon the Courts to utilize the confessional statement made under Sections 25 and 27 of Indian Evidence Act, so as to protect a person making disclosure from being falsely implicated by the police in whose custody that person remains at the time of making disclosure. The provision of Section 27 of Indian Evidence Act further indicates that the facts disclosed under Section 27 of Indian Evidence Act can be used only against the person making disclosure and not against any other person". 9. In the backdrop of the aforesaid legal position and keeping in view the fact that no evidence is available against the petitioner except the memorandum of the co-accused Meena recorded under section 27 of the Evidence Act, in such circumstances, the prosecution of the petitioner certainly should be abuse of process of law. Hence, the petition filed by the petitioner is allowed. Hence, the petition filed by the petitioner is allowed. FIR registered at Crime No. 51/2012 for the offence punishable under section 34(2) of the M.P. Excise act relating to the petitioner and also the entire subsequent criminal proceedings in this regard are hereby quashed. 10. A copy of this order be sent to the Trial Court for information and necessary action.