Vikram vs The State Of Madhya Pradesh on 18 February, 2020

[Cites 21, Cited by 3]

Madhya Pradesh High Court

Vikram vs The State Of Madhya Pradesh on 18 February, 2020

Equivalent citations: AIRONLINE 2020 MP 1393

1. As common question of law, as to whether information given by an accused in his disclosure statement before the police recorded under Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as "Act of 2 1872") which does not lead to discovery of any fact in pursuant thereto, is admissible in law more particularly against any co-accused or as to whether a person can be convicted only on the basis of such information or such confessional statement given by himself or by co-accused, is involve in all these petitions, therefore, they are heard analogously and are being decided by this common order.

2. All the petitioners have challenged the order framing charge under Section 8/18 read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity here-in-after referred to as the NDPS Act) invoking revisional jurisdiction of this Court under Section 397/401 Cr.P.C. asserting that they are being prosecuted only on the basis of totally inadmissible evidence i.e. the disclosure statement made by the co-accused to the police, which is blatant infringement of their fundamental right and cannot be allowed to continue, therefore, the charges framed against them be quashed and they be discharged.

3. In all these petitions, complicity of the petitioners is based only on the information given by the co-accused or their own statement recorded under Section 27 of the Evidence Act to the police, but has not led to discovery of any fact.

4. Facts in brief of each petition are as follows:

***** (1) CRR.No.511/2019

5. This petition is filed by petitioner Jaswant Singh in crime No.114/2018 registered at Police Station Baghana, District Neemuch for the offence under Section 8/15 read with Section 29 of the NDPS Act, who has been implicated as accused only on the basis of disclosure statement of co-accused Ghanshyam and Ambalal.

6. As per prosecution story, on 30.04.2018, the police received information that one Ghanshyam alongwith Ambalal is going to deliver illegal poppy straw from Sagrana to Rajasthan in silver colour Bolero car bearing registration number RJ-19-UA-0512. Acting on this information, the police laid a trap at the place 3 pointed out by the informer. After sometime, the police noticed a vehicle of the same particulars as intimated by the informer. They got it stopped. On asking their names, the person sitting on the driver seat revealed his name as Ghanshyam and the person sitting next to him revealed his name as Ambalal. On search of the vehicle, the police found 100 kg illegal poppy straw. They further disclosed before the police that they had bought this poppy straw from petitioner Jaswant Singh.

7. The petitioner is neither owner of the car nor anything is recovered from him. Owner of the Car is Pramod Kumar Dadhich. No call details were collected during investigating showing nexus of the petitioner with the accused person.

(2) CRR 542/2019

8. Petitioners Madanlal and Vinod have filed this petition stating that the police have implicated them in the array of the accused in crime No.181/2017 registered at Police Station Neemuch Cantt, District Neemuch for the offence under Section 8/18 read with Section 29 of the NDPS Act, on the ground that they have supplied contraband to Takhat Singh @ Mukesh and Ramesh Chandra from whose possession the police have recovered 35 kg of illegal opium from a false chamber specially designed in their S-Cross car bearing registration No. MP 09-CS-2964 to carry contraband secretly.

9. As per prosecution story, on 14.04.2017 ASI Kailash Solanki of Police Station Neemuch Cantt was going to Jodhpur along with accused Rajesh of Crime No. 175/2017 u/s 8/18 NDPS Act for investigation. On the way, when they stopped their vehicle for relieving themselves, Rajesh pointed out a person stating that he is Mukesh @ Takhat Singh Jat, who had supplied him 1 kg of opium. Seeing the police coming towards him, Mukesh along with his companion ran away with his S-Cross car bearing Registration No.MP09-CS-2964 towards Udaipur, Rajsthan. The Police of Police Station Dabok was informed and requested to nab them. The Police Dabok laid picket, caught Mukesh @ Takhat Singh Jat and Ramesh Patidar with their car and handed them over to the Police Neemuch Cantt. When the Police Neemuch Cantt was bringing them back, it received information on mobile phone that Mukesh and Ramesh were carrying illegal opium and were going to deliver it in Ahamdabad. They both (Mukesh & Ramesh) were brought to the Police Station Neemuch Cantt. On search of the vehicle, 35 kg of illegal opium kept concealed in 4 a false chamber made in the car was recovered. The police arrested and interrogated them (Takhat Singh @ Mukesh Jat and Ramesh Patidar). They revealed that they had purchased the contraband from the petitioners. On the basis of their disclosure recorded under Section 27 of the Evidence Act, the police have impleaded the petitioners in the array of the accused.

10. The co-accused Thakhat Singh @ Mukesh was registered owner of the car seized by the police, but had sold it to Ishwar Bhai Choudhary and had submitted necessary documents to the RTO. He further revealed that he had borrowed the car from Ishwar Bhai.

It is submitted by the learned counsels for the petitioners that except memorandum statement of co-accused persons Takhat Singh @ Mukesh Jat and Ramesh Patidar, no other evidence is produced by the prosecution with the charge sheet. Neither anything was recovered from the petitioners nor they are owner of the vehicles from which the police have recovered the contraband. There is no other evidence like call details etc. to connect the petitioners with the alleged crime or the criminals.

11. Learned public prosecutor has fairly admitted the contention of learned counsel for the petitioners.

(3) CRR.No.4263/2019

12. This petition is filed by Vikram Singh in crime No.19/2019 registered at Police Station Jeeran District Neemuch for the offence under Section 8/15 read with Section 29 of the NDPS Act, who has been impleaded in the array of the accused only on the basis of disclosure statement of co-accused Balwant, Darshan, Janta Singh, Bablu and Mehtab.

12. As per prosecution case, on 10.01.2019, the police received a secret credible information from the informer that Vikram (the petitioner) is carrying poppy straw in a truck bearing registration number MP 43 H 0512 and going to transfer it to another truck bearing registration No. HR 55 W 1705, which is standing at a Dhaba on Neemuch Mandsaur Highway. On the basis of the said information, the police reached on the spot. The persons present and transferring the contraband from one truck to another got wind of the police and ran away from the spot. They were chased and five of them were caught by the police on the spot. The police searched the truck and found and seized 210 kg illegal poppy straw 5 from possession of Bablu, Darshan, Janta Singh, Balwant and Mehtab. On interrogation, they all disclosed before the police that the person managed to escape from the spot was petitioner Vikram.

13. Owner of the truck bearing registration No. MP-43-H-0512 is Pawan Kumar Bhatt and the owner of the other truck bearing registration No. HR 55 W 1705 is Rajesh Kumar.

(4) CRR.No.5241/2019

14. This petition is filed by Mumtaj Hussain in crime No.425/2019 registered at Police Station Neemuch Cantt District Neemuch for the offence under Section 8/21 read with Section 29 of the NDPS Act, who has been impleaded in the array of the accused only on the basis of disclosure statement of co-accused Ayyub from whose possession the police have recovered 7 grams illegal smack.

15. As per prosecution case, on 5.8.2019, the police received secret information that Ayyub S/o Rahim is standing opposite to Idgah and is going to supply smack to some customers. The police reached on the spot, caught him and recovered 7 gm smack from his possession. The police have implicated the petitioner on the basis of his disclosure statement recorded under Section 27 of the Evidence Act that he procured the contraband from him (petitioner).

(5) CRR.No.5367/2019

16. This petition is filed by Kailash @ Kailashchand in crime No.1/2019 registered at Police Station Narcotic Cell, Indore District Indore for the offence under Section 8/21 (c) read with 29 of the NDPS Act, who has been impleaded in the array of the accused only on the basis of disclosure statement of co-accused Mobin from whose possession the police have recovered 260 gram Heroin. Mobin has stated that the petitioner had supplied him the aforesaid Heroin.

17. As per prosecution case on 2.1.2019, the police received secret information that one person is standing at Mandi gate having some illegal heroin. The police reached on the spot and recovered aforesaid Heroin from possession of the main accused Mobin. No recovery is made from the present petitioner.

**************

18. It is submitted by the learned counsels for the petitioners that except memorandum statement of co-accused persons Ghanshyam-Ambalal, Madanlal 6 & Vinod, Bablu-Mehtab, Babulal-Lalita, Mobin and Ayyub, no other evidence is produced by the prosecution with the charge sheet. Neither anything was recovered from the petitioners nor they are owner of the vehicles from which the police have recovered the contraband. There is not other evidence like call details etc. to connect the petitioners with the alleged crime or the criminals.

19. Learned public prosecutor has fairly admitted the contention of learned counsel for the petitioners.

20. Thus, in all these petitions, complicity of the petitioners therein is based on the statement of the co-accused that contraband recovered from their possession was procured from or provided by the petitioners or they were going to deliver the same to them or in any other manner, the petitioners were involved in trafficking, transporting, or sale/purchase of the contraband, as the case may be but neither anything was recovered from their possession nor were they found owner of the vehicles carrying/transporting the contraband. No other evidence to connect them with the alleged crime or the criminal found involve in the crime could be collected during investigation.

21. Before proceeding further, it would be trite to have a look at the law. For the sake of convenience Section 27 of the Evidence Act, 1872 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."

22. The law is 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 pre-independence 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 7 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).

23. We can also illustrate some judgments of this Court passed in Anant Kumar Vs. State of MP reported in 1993 Cr.L.J. 1499, Sharif Khan Vs. State of M.P. 1997(II) M.P.W.N page 254 N 173, 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.

24. Thus, it is explicit 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 is nothing but abuse of process of law, which should not be and cannot be allowed to perpetuate.

25. It is admitted position in these cases that the only evidence against the petitioners is the statement made by the co-accused to the police to the effect that they had brought the contraband from the petitioners or were going to deliver them. All these are police cases. The statements are made by the co-accused persons before the police. The charge-sheet is filed by the police and not by the Narcotics Department. Therefore, the alleged confessional statement of the co- accused persons do not fall within the purview of section 67 of the N.D.P.S. Act. The statement recorded under Section 27 of the Evidence Act does not constitute evidence admissible in law and that being so it cannot be considered even at the stage of framing of charge.

26. It is true that the judge at the initial stage of the trial is not to meticulously appreciate the evidence proposed to be adduced by the prosecution but at the same time the judge cannot act merely as a post office or as a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the document produced, any basic infirmities and find out 8 whether a prima facie case against the accused is made out. Needless to say that 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.

27. Though, there is very limited scope of interfere with the Court while exercising supervisory powers conferred under Section 397/401 and it has to be used sparingly and cautiously, but these are the cases where I am fully satisfied that non use of such revisional 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.

28. In view of the fair submission of the learned Public Prosecutor, applying the principle laid down in the cases referred, in the instant case where there is no admissible evidence against the petitioners, they are entitled to be discharged under section 227 Cr.P.C. Accordingly, all the revisions succeed. The orders of framing charges against the petitioner in their respective petitions are set aside. They are discharged from charges framed against them in their respective petitions. Their bail bonds, if furnished, are also stand discharged.

29. It is made clear that the trial shall continue in respect of other co-accused persons.

30. With the aforesaid, all the petitions are allowed to the extent indicated here-in-above.

31. It is very serious and unfortunate to note that petitioners Mandanlal in CRR.No.542/1999 and petitioner Mumtaj Hussain in CRR No.5241/2019 have following criminal records respectively:-

CRR/542/2019 (Madanlal S/o Kishanlal Jat) dzekad- vijk/k dz- /kkjk QkS- eq- dz-


                   2       257@17 Fkkuk uhep dSzV           323] 294] 506] 34 Hkknfo             511@17
                                          CRR/5241/2019 (Mumtaj)

             dzekad     vi- dz-                     /kkjk                                Fkkuk

               1        594@99           294] 506] 323] 34 Hkknfo                      uhep dSUV

               2        310@2000        8@21] 29 ,uMhih,l ,DV                          uhep dSUV
                                              9

              3    167@05     8@21] 29 ,uMhih,l ,DV              uhep dSUV

              4    176@0+9    8@21] 29 ,uMhih,l ,DV              uhep dSUV

              5    557@09     8@21] 29 ,uMhih,l ,DV              uhep dSUV

              6    209@13     8@21] 29 ,uMhih,l ,DV      Fkkuk dqokfj;k ftyk jktlean

              7    565@17     294] 506] 323] 34 Hkknfo           uhep dSUV

              8    18@18      8@21] 29 ,uMhih,l ,DV             Fkkuk jkeiqjk

              9    440@18     294] 506] 323] 34 Hkknfo           uhep dSUV

32. Even then in absence of any connecting admissible evidence, the prosecution case is dismissed at this initial stage. This Court is of the considered opinion, that it is alarming situation which highlights the weakness of prosecution case, therefore, Copy of this order along with the order delivered by this Court earlier in CRR.No.482/2012 Ismail Khan and another Vs. State of M.P. order dated 30.5.2019 be sent to the DG, Police Madhya Pradesh, the Excise Commissioner, the Crime Analysis Department of the Government of Madhya Pradesh and to the Director, Prosecution to examine the weakness of the investigation and to find out solution; so that perpetrator may not take undue advantage of weakness of the system/prosecution as well as lackadaisical attitude of indolent Investigating Officers be dealt with appropriately.

(VIRENDER SINGH) Judge das Digitally signed by REENA PARTHO SARKAR Date: 2020.02.18 17:24:34 +05'30'

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