Madhya Pradesh High Court
Arbaz Kha vs The State Of Madhya Pradesh on 6 November, 2023
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 6 th OF NOVEMBER, 2023
MISC. CRIMINAL CASE No. 32211 of 2023
BETWEEN:-
ARBAZ KHA S/O NOOR KHA, AGED ABOUT 25 YEARS,
OCCUPATION: LABOR DUDH DAIRY WALI HANUMAN
GALI JAORA, RATLAM DISTRICT RATLAM (MADHYA
PRADESH)
.....APPLICANT
(SHRI SANJAY KUMAR SHARMA- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION MAKSI,
SHAJAPUR, DISTRICT SHAJAPUR (MADHYA PRADESH)
.....RESPONDENT
(MS.BHARTI LAKKAD- PUBLIC PROSECUTOR)
This application coming on for orders this day, th e court passed the
following:
ORDER
The present application is filed under section 482 of Cr.P.C for quashment of FIR and subsequent proceedings in crime no.391/2021 registered at police station Maksi District Shajapur and subsequent proceedings arising out of same in Special Case No.02/2022 pending before the Special Judge, NDPS Act, Shajapur.
2. As per prosecution case, on 28.10.2021 a secret information was received at about 11:10 AM to the effect that one person in a truck of Ashok Leyland of white colour bearing registration no.MP-39-G-2101 is carrying illicit Signature Not Verified Signed by: SOURABH YADAV Signing time: 06-11-2023 17:38:16 2 poppy straw from Dewas to Maksi and the raid was conducted and they found the said vehicle and stopped by the police. The driver was put to interrogation who revealed his name Lakhan (co-accused) and the truck was put to search and upon search of the said vehicle, it was alleged that seven backs tied with rope were seized which was checked and has found illicit contraband weighting 1 quintal and 48 kg. The co-accused Lakhan was arrested and his memo under section 27 was recorded on 28.10.2021, in which he alleged that he had bought the alleged contraband from the present applicant and on the basis of memo recorded under section 27 of the Evidence Act, the police apprehended the present applicant on 31.10.2021.
3. It is alleged that in the memo of co-accused, the present applicant revealed that he had bought the alleged seized contraband from Jare Singh and Shyama Patidar. However, Jare Singh has not been impleaded as accused in the present case and it is stated that one co-accused Shyama is absconding.
4. Learned counsel for the applicant submits that the applicant has been implicated on the basis of disclosure statement of co-accused Lakhan under section 27 of the Evidence Act, in which he deposed that the alleged contraband was bought from the applicant. It is argued that except the said memo, there is neither any recovery in pursuant to his disclosure statement and neither call details are available with the prosecution. He is also not registered owner of the vehicle. He submitted that the applicant cannot be convicted only on the basis of memo under section 27 of the Evidence Act when there is no other evidence.
5. 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:-
Signature Not Verified Signed by: SOURABH YADAV Signing time: 06-11-2023 17:38:16 31 5 . 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 of Kashmira Singh v. State of Madhya Pradesh (supra), the relevant paras 8, 9, 10 and 11 of the 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, Signature Not Verified Signed by: SOURABH YADAV Signing time: 06-11-2023 17:38:16 4 as Reilly J. did in In re Periyaswami Moopan "t he 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".
1 0 . 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.
11. Then, as regards its use in the corroboration of accomplices a n d 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."Signature Not Verified Signed by: SOURABH YADAV Signing time: 06-11-2023 17:38:16 5
(emphasis supplied) 1 7 . 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."
6. The issue as regards evidentiary value of memo of Section 27 of India Evidence Act has already been considered in detail and decided by this Court by order dated 18/02/2020 passed in Cr.R. No.511/2019 (Jaswant Singh vs. State of M.P.) and other connected revisions, in which it has been held as under :-
"2 4 . 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."
7. He also cited the orders passed by co-ordinate bench of this Court in the case of Babulal Vs. State of MP passed in M.Cr.C No.3641/2023, Parmanan Vs. State of MP passed in M.Cr.C No.41704/2023, Vikram Singh Vs. State of MP passed in M.Cr.C No4510/2023, Bhuralal Vs. State Signature Not Verified Signed by: SOURABH YADAV Signing time: 06-11-2023 17:38:16 6 of MP passed in CRR No.4148/2023, Virandra @ Veeru Vs State of MP passed in CRR No.2681/2023 and Jaysingh and Anr Vs. State of MP passed in CRR No.3966/2023.
8. In the aforesaid cases, it has been held that when there is no evidence except the memo under section 27 of the Evidence Act, which is not admissible in the evidence, the accused cannot be convicted on the basis of memo only.
9. Learned counsel for the respondent/state submits that on the basis of statement of applicant, name of one Jare Singh and Shyama were disclosed who led to the discovery of fact proving complicity of other accused persons and the entire chain of circumstances clearly makes out that the accused acted in conspiracy as found by the court below. In support of her submission, the reliance has been placed on the judgment passed by the Apex Court in the case of Mehboob Ali and Anr Vs. State of Rajasthan reported in (2016) 14 SCC 640 and also the order passed by the co-ordinate bench of this Court in the case of Dashrath Vs. State of MP passed in M.Cr.C No.5452/2017.
10. I have heard learned counsel for the parties and perused the case diary.
11. In the present case also only evidence against the applicant is statement made by co-accused persons to the fact that the contraband was brought from the applicant. This statement was made before the police under section 27 of the Evidence Act. The statement recorded under section 27 of the Evidence Act is not admissible in law and on the basis of said statement, the accused persons cannot be convicted. Apart from that, the prosecution cannot prove any other material or evidence to show that either the applicant is registered owner or there is call details between the applicant and other co- accused persons. If statement of the applicant has not led to discovery of any Signature Not Verified Signed by: SOURABH YADAV Signing time: 06-11-2023 17:38:16 7 fact proving complicity of other accused persons and the entire chain of circumstances does not makes out that the accused acted in conspiracy. The statement under section 27 of Evidence Act is not admissible therefore, the judgment relied by counsel for the state in the case of Mehboob Ali (supra) and Dashrath (supra) would not render any assistance to the facts of the present case. As per the memo of present applicant, two names were disclosed from whom he had bought the contraband namely Jare Singh and Shyama. Jare Singh has not been impleaded as accused and Shayam is said to be absconding. Thus, in the facts of the case applying the principal laid down in the cases referred to as above by the learned counsel for the applicant, it is held that the memorandum under section 27 of the Evidence Act sole cannot be sufficient to proceed with prosecution of the applicant and as there is no admissible evidence against the applicant.
12. The application is deserves to be and is accordingly allowed. The FIR of crime no.391/2021 registered at police station Maksi District Shajapur and subsequent proceedings pending before Special Judge, NDPS Act, Shajapur in Special Case No.02/2022 is quashed so far it relates to the applicant.
13. In view of the aforesaid, the applicant shall be released forthwith, if not required in any other case.
(VIJAY KUMAR SHUKLA) JUDGE Sourabh Signature Not Verified Signed by: SOURABH YADAV Signing time: 06-11-2023 17:38:16