Madhya Pradesh High Court
Pradeep vs The State Of Madhya Pradesh on 14 August, 2020
Author: Prakash Shrivastava
Bench: Prakash Shrivastava
HIGH COURT OF MADHYA PRADESH
1 CRR No.1789/2020
CRR No.1789/2020
(Pradeep Sharma Vs. State of M.P.)
Indore, Dated : 14.8.2020
Shri Abhay Saraswat, learned counsel for the petitioner.
Shri Saransh Jain, learned counsel for the State.
Heard through video conferencing.
This revision petition under Section 397 read with
Section 401 of the Cr.P.C. is directed against the order dated
7.3.2020passed by the Special Judge (NDPS Act), Mandsaur in S.S.T. No.09/2020, whereby charge has been framed against the petitioner for commission of offence under Section 8/18, 29 of the NDPS Act.
Submission of counsel for the petitioner is that in the Challan no such material is available for framing the charge under the NDPS Act. He submits that the petitioner has been implicated only on the basis of memorandum of co-accused Manish recorded under Section 27 of the Evidence Act and apart from that there is no other material to implicate the petitioner. He submits that no seizure has been made from the petitioner, nor the petitioner is the owner of the vehicle used in transportation of the contraband item.
Learned counsel for the State has opposed the petition.
Having heard the learned counsel for the parties and on perusal of the record, it is noticed that on 22.8.2019 police had intercepted the co-accused Manish who was going in Motorcycle No. MP14MW8896 and from him the police had seized the contraband item i.e. 3 k.g. of opium. The memorandum of co-accused under Section 27 of the Evidence Act has been recorded on 25.8.2019, wherein he had stated that the contraband item was supplied to him by HIGH COURT OF MADHYA PRADESH 2 CRR No.1789/2020 the present petitioner. On the basis of this statement, the petitioner was arrested and he was granted bail by this Court by order dated 10.12.2019 passed in MCRC No.48655/2019. Thereafter the trial Court by order dated 7.3.2020 had framed charge against the petitioner for offence under Section 8/18, 29 of the NDPS Act. Counsel for the State has not disputed that apart from the memorandum of co-accused Manish recorded under Section 27 of the Evidence Act, there is no other material to implicate the petitioner in the alleged offence. No seizure or recovery has been made in pursuance to the memorandum recorded under Section 27 of the Evidence Act from the present petitioner.
The coordinate Bench of this Court in the matter of Ismail Khan and another Vs. State of M.P. in CRR No.482/2012 by order dated 30.5.2019 has considered the similar issue and has held that:-
"5. Before proceeding further, I would like to have a glance of the law laid down on the subject by the highest Court of the land or by the several High Court of the country. First we have a look of the concerned provision. For the sake of convenience Section 27 of the Evidence Act is reproduced below:
27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
6. Since pre -independence era, the Courts have consistently taken a view that the disclosure statement of any accused can only be used against its author and not against any other co-accused. First such judgement, which I would like to refer, is authored by justice Burn speaking on behalf of the Division Bench of the Madras High Court in Abdul Basha Sahib Vs. R 1940 SCC On Line Mad 79 : AIR 1941 Mad 316 (Before Burn and Lakshmana Rao, JJ.). It was held that where, in a case of murder, the first accused made a confession to the Circle Inspector which led to the discovery of certain jewels of HIGH COURT OF MADHYA PRADESH 3 CRR No.1789/2020 the murdered woman, and also a blood-stained brick which, the first accused stated, the second accused had used to beat her with and in consequence of which she died, the statement of the first accused could not be taken into consideration as against the second accused under section 30 of the Indian Evidence Act. Under section 27 of the Evidence Act the only portions of the information given by the first accused which are admissible are those which relate distinctly to the facts discovered thereby.
It cannot be said that the statements made by the first accused involving the second accused relate in any way to such facts and therefore, it cannot be used against second accused.
7. Then comes the Division Bench of the Calcutta High Court, who stated in Satish Chandra Seal v. Emperor, 1943 SCC OnLine Cal 208 : AIR 1945 Cal 137 : 1945 Cri LJ 580 at page 140 that reading S. 27 with S. 26 to which it is a proviso it appears clear to us that the statements or if the whole of any of them is not admissible, the parts of them which are admissible, can be proved only against the person who made it. Section 27 in our opinion does not sanction the letting in of the statement of one person made to a police officer, while in police custody, as evidence as against another person. The position appears to us to be that generally speaking these statements are hit by the provisions of Section 162(1) of the Cr PC, and cannot under this sub-section be used for any purpose except as therein mentioned. By reason, however, of sub-s. (2) of that section, as it stands at present, only certain kinds of statements which are hit by subs. (1) of that section but which come within Section 27 of the Evidence Act, may be proved as against the person making it. In this view of the matter, we are of opinion that the admission in evidence of the whole of all the statements said to have been made by Brojendra, Sudhir and Charubala and at any rate the use thereof against persons other than the maker thereof was erroneous and illegal."
8. Decision of the Privy Council in Pulukuri Kottaya Vs. Emperor AIR 1947 PC 67 : 48 Cri LJ 533 is the most-quoted authority for supporting the interpretation that information given under Section 27 of the Act, 1872 has no evidentiary value if there is no discovery of fact in pursuant thereto. The information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered" The "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. If the information does not pass the test, certainly it has no probative value and cannot be used against its maker of it as well as against any other person.
9. The law on the subject was discussed by the Hon'ble Apex Court in Harichara Kurmi and Jogia Hajam reported in AIR 1964 SC 1184. It was observed that:
12. 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 HIGH COURT OF MADHYA PRADESH 4 CRR No.1789/2020 person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against other 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 Chockerburty, ILR 38 Cal 559 at p. 588 a confession can only be used to "lend assurance to other evidence against a co-
accused". In Periyaswami Moopan v. Emperor. ILR 54 Mad 75 at p.77: (AIR 1931 Mad 177 at p. 178) Reilly, J., observed that the provision of S. 30 goes not further than this, "where there is evidence against the co-accused sufficient, "if believed, to support his conviction, then the kind of confession described in S. 30 may be thrown into the scale as a additional reason for believing that evidence." In Bhuboni Sahu v. The King, 76 Ind App.147 at p. 155: (AIR 1949 PC 257 at p. 260) 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 give on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. 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 consider 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 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 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 is S. 30. The same view has been expressed by this Court in Kashmira HIGH COURT OF MADHYA PRADESH 5 CRR No.1789/2020 Singh v. State of Madhya Pradesh, 1952 SCR 526: (AIR 1952 SC 159) where the decision of the Privy Council in Bhuboni Sahu's case, 76 Ind. App 147 (AIR 1949 PC 257) has been cited with approval.
10. Scope and ambit of Section 27 of the Evidence Act was comprehensively considered by Hon'ble the Supreme Court in para 13 to 17 of the judgement passed in Anter Singh v. State of Rajasthan, (2004) 10 SCC 657 : 2005 SCC (Cri) 597 at page 664, which are as under:
13. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases in the background events proved therein is not always free from difficulty. It will, therefore, be worthwhile at the outset, to have a short and swift glance at Section 27 and be reminded of its requirements. The section says:
"27. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
14. The expression "provided that" together with the phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly" relates "to the fact thereby discovered" and is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. (See Mohd. Inayatullah v. State of Maharashtra HIGH COURT OF MADHYA PRADESH 6 CRR No.1789/2020 [(1976) 1 SCC 828 : 1976 SCC (Cri) 199 : AIR 1976 SC 483].)
15. At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya case [AIR 1947 PC 67 : 74 IA 65 : 48 Cri LJ 533] and in Udai Bhan v. State of U.P. [AIR 1962 SC 1116 : (1962) 2 Cri LJ 251]
16. The various requirements of the section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
(4) The person giving the information must be accused of any offence.
(5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved.
The rest is inadmissible.
17. As observed in Pulukuri Kottaya case [AIR 1947 PC 67 : 74 IA 65 : 48 Cri LJ 533] it can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. It is one link in the chain of proof and the other links must be forged in a manner allowed by law. To similar effect was the view expressed in K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC 1788 :
(1963) 1 Cri LJ 8]
11. This view is later followed in State of Maharashtra v.
Kamal Ahmed Mohammed Vakil Ansari, (2013) 12 SCC 17:
2013 SCC OnLine SC 230 at page 36 stating that admissions/confessions are exceptions to the "hearsay rule". It was held that :
17.5 There is, therefore, a common thread in the scheme of admissibility of admissions/ confessions under the Evidence Act, namely, that the admission/confession is admissible only as against the person who had made such admission/confession.
Naturally, it would be inappropriate to implicate a person on the basis of a statement made by another. .....
12. Further, the Apex court has interpreted the provision HIGH COURT OF MADHYA PRADESH 7 CRR No.1789/2020 in the case of Mustkeem Vs. State of Rajasthan, (2011) 11 SCC 724, and has observed as under :-
25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.
13. Different High Courts of the country have also adopted the similar view. We can usefully refer some of such judgements like;
Surendra Prasad Vs. State of Bihar 1992 CRI. L. J. 2190 Patna HC - statements admissible under Section 27 of the Indian evidence Act are not admissible against person other than maker of the statements.
Asar Mohammad and Ors. Vs. State of U. P. AIR 2018 SC 5264 - Confession of co-accused cannot be basis to proceed against other accused unless something more produced to indicate their involvement in commission of crime. Kusal Toppo Vs. State of Jharkhand 2018 SCC OnLine SC 1563 - A confession cannot be treated as substantive evidence against a co-accused.
Ramakrishnan v. State of Kerala (1987) 1 Ker LT (SN) 21 held that recovery in pursuance of the disclosure made by one accused cannot be used against a co-accused.
Valiyaveetil Ashraf v. State, S.H.O. Kottakkal Police Station, 1992 SCC OnLine Ker 441 : 1994 Cri LJ 555 at page 561
26. No doubt, in Ext. P-26 A-1 has implicated A-2 and A-3 for strangulating the deceased. Ext. P-26 being the confession of A-1 cannot be used against the coaccused A-2 and A-3. In Nathu v. State of Uttar Pradesh, AIR 1956 SC 56 : (1956 Cri LJ
152) the Supreme Court held that confessions of co-accused are not evidence as defined in S. 3 of the Evidence Act and no conviction can be founded thereon. Of course, if there is other evidence on which a conviction can be based it can be referred to as lending assurance to that conclusion and for fortifying it. In dealing with a case against an accused Court cannot start with the confession of a co-accused and seek corroboration thereafter. The Court has necessarily to scan the evidence excluding the confession and if it finds that that evidence is cogent and convincing it may not be necessary to advert to the confession of the co-accused. But even in such cases the Court may advert to it to lend assurance for its conclusion. The Supreme Court in Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184 : (1964 (2) Cri LJ 344) observed that the confession of a coaccused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for HIGH COURT OF MADHYA PRADESH 8 CRR No.1789/2020 an assurance in support of its conclusion deducible from the said evidence. In the said decision, the Supreme Court held (para 16):--
"As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence."
14. This view is being persistently followed also by our own High Court. In Sushil Kumar Sharma v. State of M.P. 1995 0 Supreme (MP) 388 : 1995 JLJ 444 it is held that 'the only piece of evidence considered sufficient by 'the Magistrate for taking cognizance against the petitioner is the mention of his name in the memorandum of co-accused recorded u/s 27 of the Evidence Act, which is clearly inadmissible and cannot be proved against him.'
15. In Pappu v. State of Madhya Pradesh, 2000 SCC OnLine MP 442 : 2001 Cri LJ 875 at page 876 SB the Court observed that:
7. So far as the merit of this case is concerned, the State itself has admitted in the reply filed by it that the only evidence against the petitioners is to be found in the statement of co-
accused Tahir Ali recorded under Section 27 of the Indian Evidence Act. I am of the view that the provisions of Section 27 of the Indian Evidence Act are appended by way of a proviso to Section 26 dealing with the confession of an accused while in police custody, which has no evidentiary value. Sec. 27 of the Indian Evidence Act carving out a proviso to Sec. 26 deals with a fact deposed to as discovered in consequence of the information received from a person accused of an offence, in the custody of a Police Officer, and only so much of that information is relevant and may be proved which relates distinctly to the fact thereby discovered. Naturally, the fact discovered on the information of such person shall be relevant and may be proved against that person, obviously because such fact is discovered on the information given by that person. Therefore, apparently, such a discovered fact cannot be used and proved against any other person, meaning thereby that it would not be treated as an evidence against any other person. In the instant case, as it prima-facie appears from the challan papers, the information was given by one of the co-accused Tahir Ali, against the petitioner/accused Papoo, that he had hidden the Jeep No. MPZ-4663 near the house of Papoo; and, against the other petitioner/accused Lalloo, that he had kept seven silver coins with him. This information, if at all relevant, can at the most be proved against co-accused Tahir Ali and not against the petitioners. Thus, merely on this basis, I am of the view that the petitioners cannot be implicated with the crimes in question. Admittedly, there is no other evidence connecting them with the crimes in question.
HIGH COURT OF MADHYA PRADESH 9 CRR No.1789/2020
16. We can illustrate some more judgements of this Court passed in Anant Kumar Vs. State of MP 1993 Cr.L.J. 1499, Raghu Thakur Vs. State of M.P. 2012 (4) MPHT 116, Suresh Upadhayay Vs. State of M.P.; Mc.R.C. 837/2014 dated 5th March 2014, Rajveer Singh Vs. State of M.P. 2015 (1) MPHT 265, Gajendra Singh Bhadoria Vs. State of M.P. MANU/MP/0976/2016, Faijal & others Vs. State of M.P. Mc.R.C. 10904/2017 dated 19th February 2018, Dashrath Vs. State of M.P.; Mc.R.C. 5452/2017 dated 26 November 2018, Mohamad Wasim Mewati Vs. State of M.P.; Mc.R.C. Dated 11th March 2019.
17. Thus, sum and substance of the law laid down on the subject is that only the statement with regard to having possession of the article (contraband) is admissible against the makers of the statements, the petitioners are third persons and his disclosure, which does not lead to any recovery of fact, is not admissible against him.
18. Information given by the accused at the time of recording statement under section 27 of the Act of 1872 is not admissible against other co-accused even under section 10 of the Evidence Act. It has been held by the the Apex court in the case of Sardul Singh Caveeshar Vs. State of Bombay, AIR 1957 SC 747. Further relying on the aforesaid judgment in the case of State of Gujarat Vs. Mohammed Atik, reported in (1998) 4 SCC 351, it has been determined that "thus, the principle is no longer res integra that any statement made by an accused after his arrest, whether as a confession or otherwise, cannot fall within the ambit of Section 10 of the Evidence Act". Therefore, it is not admissible against other co-accused persons even in the case of charge of criminal conspiracy. Apart from it, in the case of Kehar Singh Vs. State (Delhi Administration) reported in (1988) 3 SCC 609, the Apex Court has held that "From an analysis of the section, it will be seen that Section 10 will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co-conspirator. Once such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it".
19. In the present cases also, it is fairly and unanimously admitted by the learned Public Prosecutors representing the State in their respective assigned matters that there is no material except the disclosure made by the co-accused that they had procured or were going to deliver the substance recovered from them to the petitioners. Neither anything was recovered from the petitioners Nor were they found registered owner of the vehicles carrying the contraband or liquor as the case may be. There is also nothing on record to get satisfaction HIGH COURT OF MADHYA PRADESH 10 CRR No.1789/2020 that there is a reasonable ground to believe that the applicant and other co-accused persons have conspired together to commit the offence alleged against them. In other words, there is no prima facie evidence that the petitioners were party to the conspiracy to the acts done by the other accused persons. Therefore, the confessional statements of the co-accused persons cannot be read or be used against the petitioners. The only piece of evidence considered sufficient by the Magistrates for taking cognizance or by the Police to file charge-sheet against the petitioners is the mention of their names in the memorandum of coaccused recorded u/s 27 of the Evidence Act, which is clearly inadmissible and cannot be proved against him.
20. 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 petitioners is nothing but abuse of process of law, which should not be and cannot be allowed to perpetuate. Though the powers under Section 482 are extraordinary in nature and has to be used sparingly and cautiously, but these are the cases 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 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, all the petitions are allowed and the proceedings pending against respective petitioners before the trial Court are hereby quashed. The petitioners of respective petitions are acquitted/discharged from the charges framed against them. Their bail bonds, if furnished, are discharged.
21. It is made clear that the prosecution against the other co-accused persons shall continue in accordance with law.
22. While studying the records of these cases, I have observed some peculiar gloomy facts commonly appeared in all these petitions, which have pinched me a lot and I think to finish the order without mentioning them, would be failure on my part too. Without blaming anyone concerned, with intent to highlight them for betterment of the system, I am mentioning them.
23. I have observed that in all these cases, the police have received vital information from the co-accused persons that either they have procured or bought contraband or were going to deliver the same to some particular person or someone escorted them with intent to give them cover for their safe landing to the destination. The normal course adopted by the police in such cases is that after receiving information, they record this information in the form of memorandum prepared under section 27 of the Evidence Act, arrest the person named by the deponent, complete the other formalities and file the charge-sheet before the concerned court and here they think that their responsibility is over. It is apparent that the investigation agencies, after arresting a person on the strength of the memo prepared under Section 27 of the Evidences Act, HIGH COURT OF MADHYA PRADESH 11 CRR No.1789/2020 do not make any proper efforts or take pains to collect evidence against such person named by the coaccused to connect them with the crime, who otherwise would have been the main culprit or kingpin of the obnoxious network, without further realizing the material aspect of the matter that the scope of the memo prepared under Section 27 of the Evidence Act is very limited and confined only to the factum of 'discovery' and the Court will acquit/discharge them observing that there is no legally admissible evidence tendered by the prosecution against such persons or the information given by the co-accused under section 27 of the Evidence Act is not admissible against such person.
24. It is worth mentioning here that the Supreme Court and High Courts in all over the country are consistently passing such orders of acquittal, discharge or quashment, where a person has been made accused only on the strength of a memo prepared under Section 27 of the Evidence Act. it appears Prima facie that the information given in the memo by the person apprehended by the police indicates existence of cyclopean nexus and network of the contrabandists. Otherwise also, this is well known fact that many mighty people, who have muscle and money power both are indulged in damnable illegal trade of intoxicants/contrabands. They have great power to influence the persons responsible to deter, dissuade or combat such lucrative ignoble trade. They are the actual menace and serious threat to the society, especially to our innocent next generation, who are the soft targets for them and often get trapped in their dragnet. It is again a well known secret that in this dishonorable trade, normally the police reaches only upto the carriers, who are mostly poor, innocent persons, tempted or lured for a penny knowingly or some time unknowingly. Taking advantage of unawareness, greed and casual attitude, whether for lack of knowledge or resource or for any other reason, the actual culprits remain escort-free.
25. Similar things happens with the owner of the lorry/vehicle used in transporting illegal/unauthorized liquor/contraband. Nobody cares to investigate their involvement in the crime.
26. I have experienced and it is a matter of great concern that the persons, who are responsible, do not go upto the roots of the menace. They trim only the branches and do not cut it at roots to prevent the problem from growing/escalating. They do not nab the kingpins of the world of crime. It may be a reason for the cops, who are assigned the duty to combat the offenders of seductive substance, may not be aware about the process to be followed after receiving such information regarding co-accused but it is really unfortunate that their superiors, who are much qualified and have been posed faith by the law of the land and more importantly by the citizens of the country failed to effectively guide and supervise them to discharge their duties upto the expectation.
27. Record of the petitions; I have gone through, does not show that after receiving such information under Section 27 HIGH COURT OF MADHYA PRADESH 12 CRR No.1789/2020 of the Evidence Act, the investigating officers have taken any pains to collect evidence to establish/bust nexus between the persons named by the person in custody. Record shows that none of the investigating officer in the cases under consideration in this order himself had tried to collect call details of the person arrested and the person named in the memo to establish their nexus or network. It would not be out of place to mention here that in so may other cases, they are normally adopting this practice, but I failed to understand as to why in these particular cases under the Excise or the NDPS Act, this recourse is not being adopted for the reasons best known to them, which is really shocking. Record further does not reflect that even after receiving information, the concerned officers tried to find out any evidence of involvement of such person named by the co-accused. There is no material on record to show that any attempts were made to search their houses, godowns, shops, institutions etc. They never tried to find out the source of livelihood of those persons or their other details. What they are actually doing is that they arrest them on the strength of memo prepared u/s 27 of the Evidence Act and file charge sheet with this belief that their duty is over, leaving them in the side of the Court; either to prosecute or to leave them. They do not bother or are least interested in the result of their own investigation, as no liability is fastened on them in the event of failure of the cases not properly investigated by them. Nobody bothers to find out the reasons as to why the Courts have acquitted or discharged, as the case may be, the accused for want of prima facie evidence."
This Court also in the matter of Praful and others Vs. State of M.P. in M.Cr.C. No.25892/2017 by order dated 27.2.2018 while considering the similar issue has held that:-
"The brief facts are that the FIR dated 3/6/2012 was registered in the Police Station Y.D. Nagar, Mandsaur by ASI Shambhusingh Rathore stating that he had received the information from the mukbir that two persons in Truck No.RJ- 09-G-4154 were illegally transporting the poppy straw. Accordingly, the process was completed and the said truck was intercepted. The driver had disclosed his name Samandarsingh S/o Chaturaram and another accompanying person in the cabin of the truck had disclosed his name Bharat S/o Sohanram and from the truck 53 quintal 98 kg poppy straw was seized. The present petitioners have not been named in the FIR nor any seizure has been made from them. The memorandum of Samandarsingh u/S.27 of the Evidence Act was taken on 4/6/2012 and he has stated that co-accused Shankar had got the poppy straw loaded in the truck. Similar was the statement of co-accused Bharat u/S.27 of the Evidence Act. On 6/6/2012 the memorandum of co-accused HIGH COURT OF MADHYA PRADESH 13 CRR No.1789/2020 Samandar u/S.27 of the Evidence Act was recorded who had stated that co-accused Shankar and Gunwant had taken the truck from them and got the poppy straw loaded in it. Similar was the statement of Bharat u/S.27 of the Evidence Act. The memorandum of Shankar u/S.27 of the Evidence Act was recorded on 13/7/2012 who had stated that co-accused Piyush, Madan were having the poppy straw who along with other co- accused had loaded it in the truck.
So far as the co-accused Madan is concerned, he had filed Criminal Revision No.115/2015 against the order of framing of charge u/S.8/15 read with Sec.29 of the NDPS Act and the co-ordinate bench of this court by order dated 23/11/2015 noting the fact that the said co-accused was implicated only on the basis of the disclosure made in the memorandum by the co-accused u/S.27 of the Evidence Act had directed the trial court to consider the matter in the light of the legal position existing in this regard and thereafter the trial court by order dated 24/7/2017 has discharged the said co- accused.
In the discharge order the trial court has noted that the main accused are Samundar and Bharat who have been arrested from the spot and on their memorandum Shankar was arrested and on the memorandum of Shankar, co-accused Madan and Piyush were implicated. The trial court has also taken note of the memorandum of Shankar @ Samrat dated 18/7/2012 in respect of Gunwantlal, Vikram, Madan and Paparam and the memorandum of Gunwant dated 7/6/2013 about Madan and Piyush. Since Madan was found to be implicated on the memorandum of co-accused Shankar @ Samrat, Praful and Gunwant and there was no material against him, therefore, he has been discharged by the trial court by order dated 24/7/2017. The case of the present petitioners stand on the same footing. Against the present petitioners also except for the memorandum of co-accused u/S.27 of the Evidence Act, there is no other material available to implicate them.
The co-ordinate bench in the matter of Kamalsingh and others Vs. State of MP and others in M.Cr.C. No.25653/2017 in the similar case of offence u/Ss.8/15, 25 and 29 of the NDPS Act where the accused persons were implicated only on the basis of the memorandum of co-accused u/S.27 of the Evidence Act while quashing the FIR and charge sheet has held as under:-
"5. The law is well settled that unless a fact is discovered on the basis of statement made by the accused, the same is legally inadmissible u/s. 27 of Indian Evidence Act. The Privy Council in its landmark decision in Pulukuri Kottaya Vs. Emperor, AIR 1947 PC 67, has held that unless there is discovery of fact, statement made u/s. 27 of Indian Evidence Act has no evidentiary value. It has further been held that in a case, it can seldom happen that HIGH COURT OF MADHYA PRADESH 14 CRR No.1789/2020 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.
6. Considered in the light of the aforesaid, in the present case, it is clear that the only connecting link against the petitioners is the disclosure statement said to have been made by Shambhulal, however, no fact as such within the meaning of Section 27 of the Indian Evidence Act has been discovered therefrom, therefore, it is a case of no evidence.
Hence, the first information report, charge- sheet and all other proceedings arising therefrom in Crime No.138/2016, Police Station Jeeran, District Neemuch are liable to be quashed.
7. Accordingly, this petition is allowed and the proceedings in Special Sessions Trial No. 37/2016 including the first information, charge-sheet and the charges are hereby quashed qua the petitioners."
Similar is the order passed by the co-ordinate bench dated 18/12/2017 passed in M.Cr.C. No.24746/2017 in the Case Bharat Singh and others Vs. State of MP and others and the order dated 28/11/2017 in M.Cr.C. No.23344/2017 in the case of Kishanlal Vs. State of M.P. Having regard to the aforesaid position in law and the fact that the present petitioners have also been implicated only on the basis of the memorandum of co-accused u/S.27 of the Evidence Act and there is no other material to connect them with the alleged offence and also the fact that in similar circumstances co-accused Madan has already been discharged by the trial court after the remand by this court, I am of the opinion that the M.Cr.Cs filed by the petitioners deserves to be allowed and is accordingly allowed by setting aside the FIR and charge sheet against these petitioners."
The position in the present case is also similar. In the present case also there is no prima facie material available in the Challan to make out a case against the petitioner for offence under Section 8/18, 29 NDPS Act. Counsel for the State has also not disputed that apart from the memorandum under Section 27 of the Evidence Act there is no other material to implicate the present petitioner. Hence I am of the opinion that the order dated 7.3.2020 passed by the trial Court framing the charge against the present petitioner of HIGH COURT OF MADHYA PRADESH 15 CRR No.1789/2020 offence under Section 8/18, 29 NDPS Act cannot be sustained and is hereby set aside.
The revision petition is accordingly allowed.
C.C. as per rules.
(Prakash Shrivastava) Judge trilok/-
Digitally signed by Trilok Singh Savner Date: 2020.08.18 17:23:54 +05'30'