Madhya Pradesh High Court
Manohar Das Bairagi vs The State Of Madhya Pradesh on 22 December, 2023
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 22 nd OF DECEMBER, 2023
MISC. CRIMINAL CASE No. 56903 of 2023
BETWEEN:-
MANOHAR DAS BAIRAGI S/O SHRI RADHESHYAM,
AGED ABOUT 43 YEARS, OCCUPATION:
AGRICULTURIST JETHANA 100, DIST. RATLAM
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI SANTOSH KUMAR MEENA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION BARAWADA
DIST. RATLAM (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI KAPIL MAHANT - GOVERNMENT ADVOCATE)
This application coming on for admission this day, the court passed the
following:
ORDER
This petition under Section 482 of the Code of Criminal Procedure, 1973 has been preferred by the petitioner/accused for quashment of the proceedings registered vide Crime No.17/2022 at Police Station Barawada, District Ratlam for offences punishable under Section 8(c) & 15(c) & 15(c) read with Section 29 of the NDPS Act, and also against the order dated 22.07.2022 passed by the Special Judge, Jaora, District Ratlam.
2. The facts of the case in brief are that on 01.02.2022 during vehicle checking the Police party saw a loading vehicle bearing registration No.MP- 43 Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 22-Dec-23 5:12:49 PM 2 L 2507 approaching from Jangle Lusadiya. The said vehicle was stopped and from the same total 55 kg. of contraband poppy straw was recovered which was being transported by co-accused Rudrapratap without a valid license. Thereafter, his memorandum under Section 27 of the Indian Evidence Act was recorded in which he stated to have procured the contraband from co-accused Sadiq and thereafter his memorandum under Section 27 of the Evidence Act was recorded in which he stated to have procured the said contraband from the petitioner. On the basis of the aforesaid memorandums the petitioner has been implicated for the present offence and upon completion of the investigation charge-sheet has been filed against him before the Court concerned and eventually charges as aforesaid have been framed against him.
3 . Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been implicated in the case. He was neither present on the spot nor was any contraband recovered from his possession. The petitioner is not the owner of the vehicle in which the transportation of the contraband was being made. His implication is only on the basis of the disclosure statement of co-accused persons recorded under Section 27 of the Indian Evidence Act in which they stated that the alleged contraband was procured by them from the petitioner. However no fact as such could be discovered on the basis of the aforesaid statement, therefore, there is no legally admissible evidence within the meaning of Section 27 of the Indian Evidence Act amounting to discovery of fact. Apart from this, there is no other evidence available on record to connect the petitioner with the present crime. It is hence submitted that the FIR as well as the charges framed against the petitioner deserve to be quashed.
4. Per contra, learned counsel for the respondent/State has supported the impugned FIR and has prayed for rejection of the petition submitting that there Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 22-Dec-23 5:12:49 PM 3 is sufficient material available on record against the petitioner.
5. I have heard the learned counsel for the parties and have perused the case diary as well as the charge-sheet.
6. From perusal of the material available on record, it appears that no recovery of any contraband has been made from the possession of the petitioner. Neither is he stated to be the owner of the vehicle in which the contraband was being transported nor was he present in the vehicle at the time of the alleged incident of transportation. He was not apprehended from the spot. He has been implicated only on the basis of disclosure statements of co- accused persons recorded under Section 27 of the Indian Evidence Act in which they deposed that the alleged contraband was procured by them from the petitioner. There are no call details available on record in respect of the petitioner hence there is nothing to demonstrate that he has been in contact with the other co-accused person at the time of the alleged incident. There is no document as regards any payment having been made by the petitioner to the co- accused.
7. Recently, this Court in the case of Dilip Kumar Vs. State of M.P., M.Cr.C. No.2748/2022 decided on 12.04.2022 has held in paragraph No.15 to 18 as under:-
15. A close scrutiny of the charge sheet reveals that apart from the aforesaid memo and the bank statement of Dangi brothers, there is no other material available on record to suggest that the present petitioner Deelep had also facilitated the sale of fake fertilizer which was prepared by Suresh Dangi and other accused persons.
There is also no evidence available on record to suggest that the present petitioner Deelep obtained from Suresh Dangi any amount over and above the requisite amount of the sale of gypsum granules to him, which can be said to be connected with the sale of fake fertilizer.
16. Regarding admissibility of the confessional statement given by a co-accused and of the petitioner, a reference may be had to the decision rendered by the Supreme Court, authored by Vivian Bose, J. in the case o f Kashmira Singh v. State of Madhya Pradesh (supra), the relevant paras 8, 9, 10 and 11 of the Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 22-Dec-23 5:12:49 PM 4 same read, as under: -
"8. Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. King.
"It does not indeed come within the definition of 'evidence' contained in Section 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 cross-examination."
Their Lordships also point out that it is "obviously evidence of a very weak type ... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities."
They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in "support of other evidence". In view of these remarks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the Judge refuses to believe him except insofar as he is corroborated?
9. In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chucker-butty where he said that such a confession can only be used to "lend assurance to other evidence against a co-accused" or, to put it in another way, as Reilly J. did in In re Periyaswami Moopan "the provision goes no 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 Section 30 may be thrown into the scale as an additional reason for believing that evidence".
10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.
Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 22-Dec-23 5:12:49 PM 511. Then, as regards its use in the corroboration of accomplices and approvers. A co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the "evidence" is not on oath and cannot be tested by cross-examination. Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the Judge as having no greater probative value. But all these are only rules of prudence. So far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the Judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to disregard it. Two of us had occasion to examine this recently in Rameshwar v. State of Rajasthan. It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed. As the Privy Council observe in Bhuboni Sahu v. King:
"The tendency to include the innocent with the guilty is peculiarly prevalent in India, as judges have noted on innumerable occasions, and it is very difficult for the court to guard against the danger ... The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused."
(emphasis supplied)
17. Testing the facts of the case at hand on the anvil of the aforesaid dictum of the Supreme Court, this Court finds that the only material evidence against the present petitioner is the memo prepared under Section 27 of the Evidence Act by the co- accused and certain bank transactions of the co-accused in which he has sent certain amount to the present petitioner through NEFT. In such facts and circumstances of the case, if the petitioner who is in the business of manufacturing Gypsum Granules and Allied products, and if in the legitimate business transaction the aforesaid granules were purchased by the other accused persons and in turn they use it in the manufacture of fake fertilizer, such act, in the considered opinion of this Court, would not amount to an offence for the present petitioner and he cannot be held guilty for the aforesaid act of the co-accused persons in the absence of any other material available on record to connect the petitioner with the offence, as has already been observed above.
18. Resultantly, the petition stands allowed and the charge sheet, so far as it relates to the present petitioner is concerned, as also the further proceedings initiated in the trial Court against him stands quashed.
8. On perusal of the case diary as well as the charge-sheet filed in the matter, this Court is of the opinion that against the present petitioner, there is no tangible evidence collected by the prosecution except the memos prepared Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 22-Dec-23 5:12:49 PM 6 under Section 27 of the Indian Evidence Act at the instance of other co-accused persons.
9. In view of the aforesaid, the petition deserves to be and is accordingly allowed. FIR registered at Crime No.17/2022 in Police Station Barawada, District Ratlam as well as the consequent proceedings pursuant thereto alongwith the charges framed on 22.07.2022 in respect of the petitioner only are hereby quashed and the petitioner is discharged for offences punishable under Section 8(c) & 15(c) & 15(c) read with Section 29 of the NDPS Act.
10. The petition is accordingly allowed and disposed off.
(PRANAY VERMA) JUDGE jyoti Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 22-Dec-23 5:12:49 PM