Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 57 (MP)

Khansher v. State of M. P.

2020-01-09

S.K.AWASTHI

body2020
ORDER 1. This criminal revision under section 397 read with section 401 of Code of Criminal Procedure, 1973 (in short 'the Code') is filed against the order dated 30.7.2019 passed by Special Judge (NDPS Act), Mandsaur in Special S.T. No. 36/2018, whereby charges for offence under sections 8/15 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has been framed against the applicant- Khansher. Heard learned counsel for the parties on IA No. 9171/2019, an application for dispensing with typed copy of the charge-sheet. On due consideration, IA No. 9171/2019 is allowed and the applicant is dispensed with from filing the typed copy of the charge-sheet. 2. According to the prosecution case, on 18.7.2018, on the basis of secret information police recovered 30 Kgs. of poppy straw from the possession of the co-accused persons namely, Nainaram and Rekharam. Thereafter, police arrested them and recorded their statement under section 27 of the Indian Evidence Act, in which they disclosed that they procured the alleged contraband from the present applicant. After completion of investigation, charge-sheet was filed before the competent Court. The trial Court after appreciating the evidence available on record by impugned order framed the charge for commission of offence punishable under sections 8/15 and 29 of the NDPS Act, 1985 against the applicant. The aforesaid order is a subject matter of challenge before this Court in the 2 present revision petition. 3. Learned counsel for the applicant has submitted that acquisition against the applicant is solely based on the disclosure statement said to have been made by co-accused persons namely, Nainram and Rekharam recorded under section 27 of the Indian Evidence Act. It is further submitted that the disclosure statement made under section 27 of the Indian Evidence Act can be used only if a fact is discovered on the basis of such statement. It is contended that in the present case no fact, as such, has been discovered within the meaning of section 27 of the Indian Evidence Act. The information given by co-accused persons namely, Nainram and Rekharam regarding the applicant involvement in the present crime hit by section 25 of the Indian Evidence Act. Apart from the information given by co-accused persons namely, Nainram and Rekharam, there is no other evidence available on record against the present applicant to connect him with the alleged offence. The information given by co-accused persons namely, Nainram and Rekharam regarding the applicant involvement in the present crime hit by section 25 of the Indian Evidence Act. Apart from the information given by co-accused persons namely, Nainram and Rekharam, there is no other evidence available on record against the present applicant to connect him with the alleged offence. Hence, trial Court has committed grave error of law in framing the charge for the offence under sections 8/15 and 29 of the NDPS Act vide impugned order. Therefore, prosecution against the applicant is liable to be quashed. 4. Per contra, it is submitted by the learned Public Prosecutor that on the basis of disclosure statement of co-accused persons namely, Nainram and Rekharam, prima-facie charge for offence under sections 8/15 and 29 of the NDPS Act is made out against the applicant. 5. Heard learned counsel for the parties and perused the impugned order and entire copy of the charge-sheet. 6. From the perusal of the charge-sheet it appears that the applicant is neither named in the FIR, nor any contraband has been recovered from his possession. The applicant has been implicated in the present crime only on the basis of information given by the co-accused persons to the Police under section 27 of the Indian Evidence Act, such information given by the co-accused persons to the Police during custody is not admissible under section 25 of the Evidence Act. Apart from this prosecution has not produced any evidence to show that the applicant was involved in the present crime. Section 27 of the Indian Evidence 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 under section 27 of 'The Act' has no evidential 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. 7. 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. 7. Considering the fact that in the present case, only material to implicate the present applicant with the alleged offence is disclosure statement made by co-accused persons namely, Nainram and Rekharam, which is not admissible as legal evidence, even prima-facie no offence is made out against the applicant, therefore, charge for offence under sections 8/15 and 29 of the NDPS Act cannot be sustained. 8. Resultantly, in view whereof this revision petition deserves to be and is hereby allowed. The impugned order to the extent it relates to framing of charge for offence under sections 8/15 and 29 of the NDPS act against applicant-Khansher is hereby quashed and the present applicant is discharged from the aforesaid offence. 9. Let a copy of this order be sent to the concerned trial Court for information and necessary compliance. Certified copy as per rules.