Rajasthan High Court - Jodhpur
Sahdev vs State Of Rajasthan on 2 December, 2019
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 1173/2019
Sahdev S/o Sh. Amilal, Aged About 40 Years, By Caste Bishnoi,
Resident Of Malarampura, Tehsil Sangriya, District Hanumangarh
(Raj.)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. D.L. Rawla
Mr. Ashok Kumar
For Respondent(s) : Mr. Vikram Sharma, P.P.
HON'BLE MR. JUSTICE SANDEEP MEHTA
Order
Date of pronouncement : 02/12/2019
Judgment reserved on : 22/11/2019
BY THE COURT :
The instant criminal revision has been preferred by the accused-petitioner Sahdev for assailing the order dated 18.01.2018, whereby the learned Additional Sessions Judge, Didwana, District Nagaur ordered framing of charge against the petitioner for the offence under Section 8/15 and in the alternative under Section 8/29 of the NDPS Act; and the order dated 01.08.2019, whereby the charge aforesaid was read over to the accused petitioner.
(Downloaded on 03/12/2019 at 08:43:33 PM)
(2 of 5) [CRLR-1173/2019]
Mr. D.L. Rawla, learned counsel representing the
petitioner, vehemently and fervently urged that the impugned order is absolutely illegal and cannot be sustained. The recovery of the contraband poppy straw weighing 36 quintal 95 kg and 300 gm was effected by the SHO, Police Station Maulasar from the truck No.HR-45-5428, from which the co-accused Vijaypal was apprehended, but one other person managed to make good his escape. When the seizure officer interrogated Vijaypal, he divulged that the person, who had ran away was Kuldeep Vishnoi. Learned counsel for the petitioner pointed out that during further investigation, Vijaypal was interrogated and in his interrogation note, he alleged that Sahdev (the petitioner herein) was the person responsible for loading the contraband poppy straw in the offending vehicle. He urged that the interrogation note of an accused recorded by a police officer is hit by the embargo contained in Sections 25 and 26 of the Evidence Act and cannot be read in evidence for any purpose whatsoever. In addition thereto, his contention was that even if the interrogation note is considered to be a confession, the same cannot be read against the co- accused. He placed reliance on the Single Bench judgment of this court in Chirag Dave Vs. State of Rajasthan Through SHO, P.S. Bicchiwada [2019 (3) CrLR (Raj) 1105] in support of his contentions and urged that the order framing charge dated 18.01.2018 is bad in the eye of law and deserves to be set aside.
Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced at bar and urged that the charge as against the petitioner has not been framed by the trial court solely on the basis of the interrogation note of the co- accused. During investigation, the Investigating Officer collected (Downloaded on 03/12/2019 at 08:43:33 PM) (3 of 5) [CRLR-1173/2019] evidence to the effect that the accused was escorting the truck No.HR-45-5428 (from which the poppy straw was recovered) by his Bolero vehicle No.RJ-13-C-1618. He, thus, urged that the involvement of the accused in the crime is well-established and the trial court was absolutely justified in framing charge against the petitioner as above.
I have given my thoughtful consideration to the submissions advanced at bar and have gone through the impugned order as well as the charge-sheet.
From a threadbare perusal of the statements and documents filed alongwith the charge-sheet, challan papers, it is clear as day light that the accused petitioner was not apprehended with the truck No.HR-45-5428, in which the contraband poppy straw was being plied. As per the tenor of the trial court's order, the petitioner was found involved in the case as being the person, who was escorting the truck in a Bolero vehicle bearing registration No.RJ-13-C-1618. On a perusal of the charge-sheet, it is clear that no such Bolero vehicle was seized by the Investigating Officer during the course of investigation. There is no material on the entire charge-sheet, which can satisfy the court that the Bolero vehicle actually travelled on the same route as the truck, from which the contraband poppy straw was recovered. The Investigating Officer could have collected the details regarding the transit of the Bolero vehicle from toll booths etc., but he made no effort to procure any such proof. Neither in the entire seizure memo, nor in the statements of the seizure officer Mr. Navneet Vyas or any other member of the police party associated in the search and seizure proceedings; was any utterance made that the truck was being escorted by the aforementioned Bolero vehicle. (Downloaded on 03/12/2019 at 08:43:33 PM)
(4 of 5) [CRLR-1173/2019] Thus, the allegation regarding the offending truck having been escorted by the petitioner in the Bolero vehicle No.RJ-13-C-1618 seems to be a pure figment of imagination and a conjectural finding of the Investigating Officer and nothing else. In the entire charge-sheet, there is no such allegation that the truck was escorted by any Bolero vehicle being driven by the petitioner in the manner narrated by the trial court in the impugned order. On a careful perusal of the impugned order dated 18.01.2018, it is clear that even the allegation regarding escorting of the truck by the Bolero vehicle No.RJ-13-C-1618 is based on the confession of the co-accused Vijaypal, made by him to the seizure officer Navneet Vyas and his associates as per their 161 CrPC statements. The statement of an accused recorded by a police officer, be it oral or in writing, is clearly inadmissible in evidence as the same would be hit by Sections 25 and 26 of the Indian Evidence Act. Furthermore, even a judicial confession of a co- accused cannot form the basis of initiating a prosecution against another accused in the same case, as has been held by Hon'ble Supreme Court in the case of Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar [AIR 1964 SC 1184]. Such confession can be used to corroborate other evidence, if any available on record. In the case at hand, the situation is entirely different because what the prosecution has chosen to rely upon is the interrogation note/confession of the co-accused made to the police officers, which is inadmissible in evidence for any purpose whatsoever. Thus, there is no legal evidence available on record of the case, which could have formed the basis for framing charge against the petitioner for the offences mentioned above and (Downloaded on 03/12/2019 at 08:43:33 PM) (5 of 5) [CRLR-1173/2019] consequently, the order framing charge dated 18.01.2018 is absolutely illegal and cannot be sustained.
Thus, the revision deserves to be and is hereby allowed. The impugned order dated 18.01.2018, whereby charge was framed against the petitioner for the offence under Section 8/15 and in the alternative under Section 8/29 of the NDPS Act and the order dated 01.08.2019, whereby such charge was read over to him, are hereby quashed and set aside. However, the trial of the remaining accused shall continue as per law.
(SANDEEP MEHTA),J 207-Pramod/-
(Downloaded on 03/12/2019 at 08:43:33 PM) Powered by TCPDF (www.tcpdf.org)