Madhya Pradesh High Court
Mobin @ Patan vs The State Of Madhya Pradesh on 15 March, 2018
Cr.R. No.3046/2017
(Mobin @ Patan Vs. State of M.P.)
Indore, dated 15.03.2018
Parties through their counsel.
The present criminal revision has been filed by the
applicant being aggrieved by the order dated 03/06/2017
passed by Special Judge, N.D.P.S. Ratlam(M.P.) in Sessions
Trial No.04/2015 framing charges under Section 8/29 of
Narcotic Drugs and Psychotropic Substances Act, 1985.
As per the prosecution case, it has been alleged that on
09/07/2015Police Station Barkheda Kala, Ratlam has intercepted one Yakub and from his possession 840 gm smack was recovered. On the basis of memorandum of Yakub under Section 27 of the Indian Evidence Act, the present applicant has been implicated and offence has been registered against Yakub as well as against the present applicant.
The trial Court has framed the charges and learned counsel has filed present revision against order dated 03/06/2017 and his contention is that there is no evidence against the present applicant to connect him for an offence under Section 8/21 and Section 29 of the NDPS Act. He has clearly stated because the said co-accused has named the present applicant in the memorandum under Section 27 of the Indian Evidence Act, he cannot be made an accused and subjected to trial. He has categorically stated that there is no other evidence except the fact that his name finds place in the memorandum given by the co-accused under Section 27 of the Indian Evidence Act wherein Yakub the co-accused has stated before the police that it was the present applicant who has sold the contraband to him.
This Court in the case of Bharat Kumar Vs. State of M.P., on 21/08/2017 in Cr.R. No.832/2016 has passed the following order:-
"3. It is submitted by learned counsel for the petitioner that nothing is against the petitioner except the memorandum recorded under Section 27 of Indian Evidence Act which is not admissible against the present petitioner. Placing reliance on order passed by co-ordinate Bench of this Court in Cr.R. No.245/2015 dated 03/09/2015 and order dated 12/04/2017 passed in M.Cr.C. No.2925/2016. He further placed reliance on an order passed by this Court in Cr.R. No.650/2002 dated 25/07/2003 and in case of Sharif Khan vs. State of M.P. 1997 (II) M.P.W.N. 254 note 173. Learned counsel for the petitioner prays for quashing the charges framed by learned trial Court against the petitioner.
4. Learned Public Prosecutor has fairly admitted that there is no evidence against the present petitioner except the memorandum of co-accused persons recorded during investigation by the Police. He further admitted that these memorandums are not admissible against the petitioner as no recovery has been made on the basis of these memorandums from the petitioner.
5. In case of Sharif Khan (supra), two accused persons challenged the order of framing charges against them. One was the owner of the vehicle which was seized by the Investigating Officer in which the contraband was found and the vehicle was used for transporting the contraband. The another persons Ayub Khan was the present applicant, who brought the vehicle from Pune to Sendhwa and according to the plan, the contraband was to be transported again to Pune in the car which belonged to co-accused Sharif Khan. The coordinate Bench of this Court observed as under :-
"As against the applicant No.2 Ayubkhan, the only circumstance is the statement made by co-accused Albert to the police to the effect that the former had brought the car alongwith the contraband to him and that under the plan he was to meet him again at Pune. This case is investigated and the charge-sheet is filed by the police not by the Narcotic Department. The alleged confessional statement of the coaccused Albert did not, therefore, fall within the purview of section 67 of the N.D.P.S. Act. The statement did not constitute evidence admissible in law and that being so it cannot be considered even at the stage of framing of charge. It is true that the judge at that initial stage of the trial is not to meticulously judge the evidence proposed to be adduced by the prosecution but at the same time the judge cannot act merely as a post office for a mouthpiece of prosecution, but has to consider the broad probabilities of the case, the total effect of evidence and the document produced, any basic infirmities and find out whether a prima facie case against the accused has been made out. Needless to add, any such evidence and the documents relied upon by the prosecution should be admissible under the law of evidence. No inadmissible or irrelevant evidence or document can be taken into consideration for the purpose of framing charge. In the instant case there being no admissible evidence much less sufficient one against the applicant-accused Ayubkhan, he is entitled to be discharged under Section 227 Cr.P.C."
A similar view has been taken by this Court in the case of Dilip Vs. State of M.P., in Cr.R. No.295.2017 decided on 11/09/2017.
This Court again in the case of Karulal Vs. State of M.P. in Cr.R. No.1523/2015 has passed the following order:-
"Heard learned counsel for the parties and perused the record.
It is not a matter of dispute that the complicity of the petitioner is alleged on the basis of disclosure statement said to have been made by Ajitsingh and Avtarsingh u/s. 27 of the Indian Evidence act. Section 27 of the Indian Evidence Act, in terms, provides that only that information which distinctly leads to the discovery of fact is admissible in evidence. In the landmark decision of Privy Council in the case of Pulukuri Kottaya vs. Emperor, AIR 1947 P.C. 67, it has been held that unless there is discovery of fact, statement made u/s. 27 of the Indian Evidence 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.
In the instant case, considering the fact that the only material to connect the petitioner with the alleged offence is the disclosure statement made by Ajitsingh and Avtarsingh, which is not legally admissible in evidence, even, prima facie, no case is made out against him, therefore, the charge framed against him for the offence u/s. 8/15(c) read with Section 29 of the NDPS Act cannot be sustained.
Resultantly, this petition deserves to be and is hereby allowed. The impugned order, to the extent it relates to framing of charge for the offence u/s. 8/15(c) read with Section 29 of the NDPS Act qua the petitioner is hereby quashed and he is discharged for the said offence."
In similar circumstances, the applicant therein was discharged in respect of the offence under Section 8/21 and 29 of NDPS Act.
In the light of the aforesaid the present revision stands allowed. The order framing charges for offence under Section 8/21 r/w Section 29 of NDPS Act are hereby quashed. The applicant is discharged from on the offence under Section 8/21 and Section 29 of NDPS Act. However, in respect of other co- accused, the trial will continue.
(S.C. Sharma) Judge vibha Digitally signed by Vibha Pachori Date: 2018.03.16 16:10:46 +05'30'