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2020 DIGILAW 290 (MP)

Aashish v. State Of M. P.

2020-02-25

VIRENDER SINGH

body2020
JUDGMENT 1. The petitioner has challenged order dated 13.12.2019 of framing charges against him under Section 8(c)/15(c) read with Section 29 of N.D.P.S. Act, 1985 and Sections 471 and 473 of IPC. 2. The case of the prosecution in short is that acting on a secret input, the police chased a Mahindra Scorpio Jeep on Sarsod Guradiyashah road between 15:00 to 20:45 hours on 22.08.2018. The occupant managed to escape leaving behind the jeep. On search five bags containing total 100 kg poppy straw were recovered from the Jeep. At the time of seizure, number plate showing registration No.MP-09-BD-0102 was affixed on the Jeep. On search, one more fiber number plate showing registration No.MP-04-EH-8750 was found in the Jeep. On the basis of engine and chassis number, the police traced the registered owner of the jeep and arrested Nanalal on 13.03.2019 and booked him for trafficking illicit poppy straw. He was interrogated. He revealed that he got prepared fake number plates from the shop of the petitioner. Therefore, the petitioner is also booked by the police. Charge-sheet was filed against both the persons. 3. The Trial Court has framed charges against the petitioner under Section 8(c)/15(c) read with Section 29 of N.D.P.S. Act and Section 471 and 473 of IPC. 4. Challenge is made on the ground that the petitioner is impleaded in the array of the accused only on the basis of disclosure statement of co-accused Nanalal recorded under Section 27 of Evidence Act, which is totally inadmissible against the petitioner. Further, the police have recorded memorandum statement of disclosure in the form of confession of the petitioner, but this is also inadmissible in the eyes of law and cannot be used against him, either to prosecute or to convict him. Even the charges cannot be framed on such evidence. 5. It is further submitted by the learned Counsel for the petitioner that he runs a car decor shop in the name and style of Sai Car Decor in the city of Jawara. He usually makes number plates of the car, as per instructions of the customer, without knowing them personally. Besides, there is no evidence in this case, except the memorandum statement of the co-accused or the confessional statement of the petitioner himself that the recovered number plate was prepared by the petitioner and such statements, as argued above, are totally inadmissible in evidence. Besides, there is no evidence in this case, except the memorandum statement of the co-accused or the confessional statement of the petitioner himself that the recovered number plate was prepared by the petitioner and such statements, as argued above, are totally inadmissible in evidence. Therefore, prosecution of the petitioner is abuse of authority of law. The learned Trial Court has erred in framing the charges against him on the basis of such inadmissible evidence, therefore, the order framing charges be set aside and the petitioner be discharged. 6. Learned Public Prosecutor has fairly admitted that there is no other inculpatory evidence against the petitioner, except the memorandum statement of co-accused or the confessional statement of the petitioner himself, both recorded under Section 27 of Evidence Act. 7. Learned Public Prosecutor further drew my attention towards seizure memo showing that a radium black colour tape, an ACP number plate and a cutter were seized from the petitioner, but fairly admitted that these are usual articles, which can be found in any car decor shop. 8. The law is now well settled that the information given by the co-accused is inadmissible if the same does not lead to any recovery. In a string of judgment right from the preindependence era, the Courts have settled this proposition of law. We can refer some of the judgments passed in Harichara Kurmi and Jogia Hajam reported in AIR 1964 SC 1184 , Anter Singh v. State of Rajasthan reported in (2004) 10 SCC 657 : 2005 SCC (Cri) 597 , State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari reported in (2013) 12 SCC 17 : 2013 SCC OnLine SC 230 (page 36), Mustkeem Vs. State of Rajasthan reported in (2011) 11 SCC 724 , Asar Mohammad and Ors. Vs. State of U.P. reported in AIR 2018 SC 5264 , Kusal Toppo Vs. State of Jharkhand reported in 2018 SCC OnLine SC 1563 , Valiyaveetil Ashraf v. State, S.H.O. Kottakkal Police Station reported in 1992 SCC OnLine Ker 441 : 1994 Cri LJ 555 (page 561) and Pappu v. State of Madhya Pradesh reported in 2000 SCC OnLine MP 442 : 2001 Cri LJ 875 (Page 876). 9. We can also illustrate some judgments of this Court passed in Anant Kumar Vs. State of MP reported in 1993 Cr.L.J. 1499 , Raghu Thakur Vs. 9. We can also illustrate some judgments of this Court passed in Anant Kumar Vs. State of MP reported in 1993 Cr.L.J. 1499 , Raghu Thakur Vs. State of M.P. reported in 2012 (4) MPHT 116 , Suresh Upadhayay Vs. State of M.P . passed in MCRC 837/2014 dated 5th March 2014, Rajveer Singh Vs. State of M.P. reported in 2015 (1) MPHT 265 , Gajendra Singh Bhadoria Vs. State of M.P. reported in MANU/MP/0976/ 2016 , Faijal & others Vs. State of M.P. passed in MCRC 10904/ 2017 dated 19th February 2018, Dashrath Vs. State of M.P . passed in MCRC 5452/2017 dated 26 November 2018, Mohamad Wasim Mewati Vs. State of M.P. passed in MCRC Dated 11th March 2019. 10. Thus, it is lucid that the information given or disclosure made by the accused, which does not lead to any recovery is not admissible in evidence against other co-accused persons and on the basis of such inadmissible evidence the prosecution of the petitioner is nothing but abuse of process of law, which should not be and cannot be allowed to perpetuate. 11. Though, the revisional power under Section 397 read with Section 401 of Cr.P.C. are very wide, but are purely discretionary and should be exercised only in rare cases to prevent miscarriage of justice, when there is glaring defect in procedure on point of law resulting in failure of justice. Exercising of the revisional power by this Court under the aforesaid Section is to call for the records of any inferior Criminal Court and to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. The High Court will exercise its power where there is a material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction, or where the facts admitted or proved do not disclose any offence. Cases of such interference 'must be of an exceptional nature. The High Court will exercise its power where there is a material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction, or where the facts admitted or proved do not disclose any offence. Cases of such interference 'must be of an exceptional nature. When, therefore, the facts float on the surface and there is not even a scintilla of suspicion of criminal liability as against the accused the High Court would interfere and quash the proceedings and this is the case where I am fully satisfied that non use of such inherent powers would lead to or would cause injustice. It would be in the interest of justice or necessary to achieve the object of the law that no innocent person shall be allowed to face unnecessary prosecution, if there being no evidence at all against him. Therefore, the petition is allowed and order dated 13.12.2019 by which charges framed under Section 8(c)/15(c) read with Section 29 of N.D.P.S. Act, 1985 and Sections 471 and 473 of IPC and all subsequent criminal proceedings in Special Sessions Trial No.47/2019 pending against the petitioner Aashish S/o Laxminarayan before the Special Judge (NDPS Act), Mandsaur are hereby quashed . The petitioner is discharged from the charge under Sections 8(c)/15(c) read with Section 29 of N.D.P.S. Act, 1985 and Sections 471 and 473 of IPC framed against him. 12. It is made clear that the prosecution against the other coaccused persons shall continue, in accordance with law. 13. With the aforesaid observations, the present petition is allowed to the extent hereinabove indicated. 14. Bail bond, if any, submitted by the petitioner shall stand discharged.