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(3) criapl42.19

3. It is in the aforesaid case the appellant filed an application (Exh.19) to discharge him from the said case on the grounds that without any sufficient and justifiable ground and without following mandatory provisions and Rules of the MCOC Act the investigating agency applied Section 3 of the MCOC Act even ignoring the basic ingredients of Section 2(f) of MCOC Act. The authorities did not apply their mind to apply Section 3 of the MCOC Act. When there is no single offence registered against the appellant and as his antecedent is spot-less, there was no reason to register crime against the appellant for the offence under Section 3 of the MCOC Act. There is no material to frame charge against the appellant for the offences alleged against him. The confessional statement of co- accused was recorded without following the provision under Section 18 of the MCOC Act and the said statement of co-accused has no evidencary value. The said statement of co-accused is very weak piece of evidence. There should be at lest two cases, wherein, charge-sheet is filed within 10 years to attract the provisions of MCOC Act as held by the Hon'ble Supreme Court in the case State of NCT of (4) criapl42.19 Delhi Vs Brijesh Singh @ Arun Kumar and Another reported in 2017(DGLS)(SC) Page 1064.

(b) In the case of Mohamad Iqbal Farooq Sheikh and anr Vs State of Maharashtra 2007 (Supp) Bom.C.R.415 in paragraph Nos. 9,13 and 14, it was (7) criapl42.19 observed as under:

"9. In the present case, admittedly there is no certificate and memorandum prepared or noted at the end of the confession by the Competent Authority P.W.16, which is one of the mandatory requirement of Section 18 of MCOC Act. Neither the prosecution has relied on any contemporaneous record to substantiate that substantial compliance was done by P.W.16 of the mandatory requirements after recording of confession was completed. Applying the principle expounded by the Apex Court in the above said decisions, I have no hesitation in accepting the argument of the appellants that confession statements as recorded by P.W.16 will be of no avail. The same will have to be discarded. Once the confessional statements are discarded, the only other evidence that remains against the accused No.2 is discovery of motor cycle which was allegedly used in the commission of the alleged crime. That evidence alone cannot be the basis to proceed against the accused No.2. That is not a substantive piece of evidence to indicate the complicity of the accused No.2 in the commission of the crime. For, it is only discovery of vehicle allegedly used in the commission of crime in terms of Section 27 of the Evidence Act. No other fact can be inferred to proceed against the accused No.2.

10. As regards the first ground of objection argued by the learned counsel for the appellant is that confessional statement of co-accused Dilip @ Dilkya Kale on the basis of which the appellant is involved in the present crime has no evidencary value since it was not recorded following provision ( 27 ) criapl42.19 under Section 18 of the MCOC Act is concerned, copy of confessional statement of co-accused Dilip @ Dilkya Kale produced with the compilation submitted by the learned APP shows involvement of all six accused in committing the offences, the presence of appellant at the spot of incident as well as use of Scorpio vehicle of the appellant in the commission of offence. Said statement bears thumb impression of accused Dilip @ Dilkya Kale, signatures of both Panchas and the Investigating Officer. The aspect of admissibility or otherwise of this confessional statement of co-accused Dilip @ Dilkya Kale against the appellant/accused No.3 would be considered while deciding the case and at least at this stage it is clear from the confessional statement of co-accused that the vehicle of the appellant was used in the commission of offence. Similarly, there is a statement of another co-accused Krushna Vilas @ Ramdas Bhosle recorded under Section 27 of the Evidence Act which shows that vehicle of the appellant was used in the commission of offence and the appellant was told about using of his vehicle and that he consented for the same.