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2015 DIGILAW 1014 (MP)

Pappu Rai v. State of Madhya Pradesh

2015-09-23

S.K.PALO

body2015
ORDER : S.K. PALO, J. 1. This petition under Section 482 of Cr.P.C. has been filed for quashing the FIR against the petitioner. Pappu Rai in respect of crime No. 208/2012 registered at Police Station Bahodapur for offence punishable under Section 34-A of M.P. Excise Act. Factual matrix is, when the police party Bahodapur was patrolling in Anandnagar, they received an information that at Jalalpur Road, in front of Gyansingh Yadav's houses a tractor trolly carrying illegal liquor is stationed. The police party reached the spot. Seeing the police party two persons jumped from the tractor and fled away. Two other persons were caught who disclosed their names as Kallu Batham and Kashiram Batham resident of Village Ladhedi. On search in the tractor trolly found to be 371 boxes of silver whiskey, zin and country made liquor which were seized. Kallu Batham and Kashiram Batham were arrested. On their interrogation they have stated that the contraband belongs to accused Pappu Rai resident of Village Ghasmandi. The contraband valued Rs. 8,76,720/- along with tractor trolly were seized. 2. On behalf of the petitioner, if is contended that the petitioner has been falsely implicated. Gyan Singh let out the house to Rajesh Singh and Dalchand residents of Rasulabad. Therefore, Gyan Singh is not in possession of the house. Rajesh was residing in the house. Therefore, the petitioner had no control or possession of the house which belonged to Gyan Singh Yadav. The recovered country made liquor were seized from the house situated at Sagartal Road, Gwalior. The house where goods were lying belong to Gopal Singh Yadav. The liquor was seized from the house not from the tractor trolly. In the newspaper "Nai Duniya" published this information on the same day. Police lodged the FIR which is fictitious and deserves to be quashed. 3. It is also argued by the learned counsel for the petitioner that on the basis of disclosure statement of the co-accused under Section 27 of Evidence Act, the petitioner has been implicated. Whereas such statement recorded against the petitioner is a week evidence. No liquor has been seized from the petitioner Cognizance has been taken by the Police against the petitioner is absolutely illegal Counsel for the petitioner contends that except the aforesaid disclosure statements, there is no other evidence on record against the petitioner which may establish that illegal liquor belongs to the petitioner. No liquor has been seized from the petitioner Cognizance has been taken by the Police against the petitioner is absolutely illegal Counsel for the petitioner contends that except the aforesaid disclosure statements, there is no other evidence on record against the petitioner which may establish that illegal liquor belongs to the petitioner. It is also not the case of prosecution that vehicle in which the illegal liquor was being transported belong to the petitioner. 4. Learned Panel Lawyer for the State opposed the petition stating that the petitioner is the owner of the illicit liquor. The accused persons, who were caught in the spot were only the small fishes. 5. This Court in Ashok Nanda (Supra) has observed at 12 as under: "A far as the evidence of memoranda given by the co-accused persons under Section 27 of the Evidence Act is concerned, their confessional statements to police cannot be accepted as legal, evidence against petitioners. In the absence of any other incriminating piece of evidence. Except the above circumstances, absolutely no other evidence has been collected, and produced by the prosecution prima facie, to indicate that petitioners hatched conspiracy with other accused person to commit murder of complainant Rajendra Agarwal." 6. This Court in Prakash Singh. v. State of M.P., 1994 (II) MPWN 72 has held as under:- "The statement 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, facts but involve other accused are inadmissible under Section 27 against the later." 7. This Court in Raghu Thakur v. State of M.P., 2012(4) M.P.H.T. 116 has observed in para 6 and 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 persons 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 persons making disclosure and not against any other persons." 8. So far as invoking the, powers Under Section 482 of Cr.P.C. for quashing the criminal proceeding is concerned, the Apex Court in the case of Zandu Pharmaceutical Works Ltd. and others v. Mohd. Sharaful Haque and another, (2005)1 SCC 122 in great detail considered the scope of powers under Section 482 of the Code of Criminal Procedure for quashing the criminal proceeding relying on the earlier decision rendered by the Apex Court in the Case of R.P. Kapur v. State of Punjab AIR 1960 SC 866 and State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 in which it was held: "In R.R Kapur v. State of Punjab this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceeding. i. Where it manifestly appears that there is a legal bar against the institution or continuance e.g. want to sanction; ii. Where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged iii. Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge." 9. In view of the aforesaid discussions and the legal position and in view of the fact that no evidence is available against the petitioner except the disclosure of co-accused under Section 27 of Evidence Act. The Crime No. 208/2012 under Section 34-A of M.P. Excise Act registered at Police Station Bahodapur District Gwalior. So, far as it relates to the petitioner Pappu Rai deserves to be quashed. Consequently, this petition is allowed and FIR registered at Crime No. Crime No. 208/2012 under Section 34-A of M.P. Excise Act at Police Station Bahodapur, District Gwalior. So far as it relates to the petitioner Pappu Rai is hereby quashed.