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Madhya Pradesh High Court · body

2019 DIGILAW 639 (MP)

Bhagwatilal v. State of M. P.

2019-09-05

S.K.AWASTHI

body2019
ORDER 1. This revision petition under section 397 read with section 401 of Cr.P.C. has been preferred by the applicant being aggrieved by the order dated 462019 passed by Additional Sessions Judge, Special Court (NDPS Act), Jaora, District Ratlam, in S.S.T. No. 15/2018, by which the trial Court has framed charges under section 8(C)/15(C), 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity 'The Act, 1985') against the applicant. 2. The facts of the case, briefly stated, are that on 15.4.2018, police received a source information from informant that one eicher truck bearing Registration No. MP 09 GF 1015 was going towards Mandsaur to Ratlam loaded with garlic and they kept illegal poppy straw in the truck. Thereafter, Police prepared necessary punchnama, called two independent witnesses and reached the spot. After some time as per the information, Police force saw one eicher truck bearing Registration No. MP 09 GF 1015, coming towards Mandsaur and after seeing the Police force two persons fled away from the vehicle. During search of the vehicle, 124 bags of garlic and 69 bags of poppy straw was found. Total quantity of 15 quintal, 16 kgs., 500 grams of poppy straw was recovered from the truck. After that Police registered FIR bearing crime No. 122/2018, arrested Firoz Khan, the owner of the vehicle and his statement under section 27 of the Indian Evidence Act was recorded in which he has stated that the aforesaid contraband was loaded in the truck by the present applicant and coaccused Girirajsingh @ Gangnarayan. On the basis of the aforesaid statement, the present applicant was arrested. After completion of investigation charge sheet has been filed against the applicant and other accused persons for the aforesaid offence. 3. It is submitted by learned counsel for the applicant that the applicant is innocent and he has been falsely implicated in the present matter. It is further submitted that the present applicant was not present on the spot and no contra-band has been recovered from his possession. The complicity of the applicant is alleged only on the basis of the disclosure statement, said to have been made by Firoz Khan, to the effect that the contraband was being loaded in the truck by the present applicant along with Girirajsingh and Gangnarayan. The complicity of the applicant is alleged only on the basis of the disclosure statement, said to have been made by Firoz Khan, to the effect that the contraband was being loaded in the truck by the present applicant along with Girirajsingh and Gangnarayan. However, no fact as such, could be discovered on the basis of his statement, therefore, there is no legally admissible evidence within the meaning of section 27 of the Indian Evidence Act, 1872 (for short 'The Act') amounting to discovery of fact. Apart from this there is no other evidence available on record to connect the applicant with the present crime. Hence he prayed that impugned order of the trial court be set aside and the applicant be discharged from the aforesaid offences. 4. Per contra, the learned Public Prosecutor supported the impugned order and prayed for rejection of this petition. 5. I have heard learned counsel for the parties and perused the record. 6. From the perusal of the material available on record, it appears that the applicant is not named in the F.I.R and no contraband has been recovered from his possession. Neither he is the owner of the vehicle nor he was present in the vehicle at the time of the alleged incident. He was not apprehended from the spot. He was implicated in the present matter only disclosure statement, said to have been made by Firoz Khan, to the effect that the contraband was being loaded in the truck by the present applicant along with Girirajsingh and Gangnarayan. The memorandum of co-accused is nothing except a confessional statement given before the police officials, which is not admissible under Section 25 of the Evidence Act. Apart from this the prosecution has not produced any evidence to show that the applicant was involved in the present crime. 7. Section 27 of 'The Act', in terms, provides that only that information which distinctly relates to the discovery of fact is admissible in evidence. In the landmark decision of Privy Council in the case of Pulukuri Kottaya v. Emperor, AIR 1947 P.C. 67 , it has been held that unless there is discovery of fact, statement made u/S. 27 of 'The Act' has no evidentiary value. In the landmark decision of Privy Council in the case of Pulukuri Kottaya v. Emperor, AIR 1947 P.C. 67 , it has been held that unless there is discovery of fact, statement made u/S. 27 of 'The Act' has no evidentiary value. It has further been held that in a case, it can seldom happen that information leading to discovery of a fact can be made, the foundation of the prosecution case because it is one link in the chain of proof and the other links must be forged in the manner allowed by law. 8. In the case of Hari charan Kurmi and Jogia Hajam v. State of Bihar, (1964) 6 SCR 623 it was observed by the apex court :- “As we have already indicated. this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. in dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbuttv, (1911) I.L.R. 38 Cal. 559 at p. 588. a confession can only be used to "lend assurance to other evidence against a co-accused". In In re. Peryaswami Noopan,(2) Reilly J. observed that the provision of s. 30 goes not further than this : "where there is evidence against the coaccused sufficient, if,. believed, to support his conviction, then the kind of confession described in S. 30 may be thrown into the scale as an additional reason for believing that evidence." In Bhuboni Sahu v. King, (1913) I.L.R. 54 Mad. 75 at p. 77. the Privy Council has expressed the same view. Sir. John Beaumont who spoke for the Board observed that a confession of a co-accused is obviously evidence of a very weak type. 75 at p. 77. the Privy Council has expressed the same view. Sir. John Beaumont who spoke for the Board observed that a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in S. 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by crossexamination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case, it can be put into the scale and weighed with the other evidence." It would be noticed that as a result of the provisions contained in S. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in S. 30. That, briefly stated, is the effect of the provisions contained in S. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh 1952 S.C.R. 526 where the decision of the Privy Council in Bhuboni Sahu's(2) case has been cited with approval.” 9. Considering the fact that in the present case the only material to implicate the present applicant is the disclosure made by Firoz Khan, which is not a legal evidence, therefore this petition filed under section 397 of Cr.P.C. is allowed. The impugned order dated 4.6.2019 is hereby set aside and applicant is discharged from the charges under section(s) 8(C)/15(C), 29 of 'The Act, 1985'. With the aforesaid, the revision petition stands disposed of.