G. Reghuvaran vs State of Tamil Nadu

S. Palanivelu, J.—The petitioner is second accused in Crime No. 23 of 2007 registered under Sections 6, 7 of TNPS Rule 2000 r/w 4(l)(aaa), 4(l)(A), 14(A) TNP Act and Section 57 of Tamil Nadu Excise Act, on the file of the respondent Police.

Originally, the First Information Report came into existence with respect to the first accused alone and subsequently during investigation on the strength of the confession statement given by the first accused, the second accused has been arraigned. The First Information Report would read that while the complainant, the Sub Inspector of Police, Prohibition Wing was making a vehicle check-up at Pallivilai turning in Vettoornimadam National Highways, a Maruthi Car was intercepted and the driver attempted to fly away from the scene, but he was apprehended and on enquiry he informed his name and address; that the Police found prohibited spirit in 16 white cans, each containing 35 liters; that the driver was arrested and thereafter, samples of the contraband were taken as per procedure.

During investigation, the first accused stated about the complicity of this petitioner in the offence. His confession statement would show that the second accused was familiar with him; that he represented the first accused that he was dealing with illicit transporting of spirit and if he transports the spirit in the car, he would pay a sum of Rs. 750/- per trip, for which the first accused was agreeable; that on a prior occasion, five loads of spirit were transported in the car and entrusted to first accused for which he received the amount from the second accused; that on 16.02.2007 at about 5.00 p.m., both the accused came to Vazhukkamparai near Suchindrem in a Maruthi Car bearing Registration No. KL 01 AE 5727; that second accused asked him to wait for some time and that he returned back after one hour with 16 cans of spirit each containing 35 liters of prohibited spirit and asked the first accused to take the spirit to Kaimanam near Thiruvananthapuram and he would come later and that at about 8.30 p.m., while he was driving the car with the spirit, he was nabbed by the police.

The learned counsel for the petitioner Mr. H. Velavadhas would strenuously contend that by no stretch of imagination the second accused could be made guilty of the offence on the strength of the confession made by the co-accused viz., the first accused and arraying of the petitioner in this case is unlawful. He further submitted that having regard to the circumstances that he was in police custody, the police have pressurised him and obtained the confession falsely implicating the petitioner who does not have any involvement in the alleged offence.

The Court heard the arguments of Mr. A. Palanisamy, the learned Additional Public Prosecutor.

The learned counsel for the petitioner would garner support from a decision rendered in Mayil Vahanan v. Intelligence Officer, Narcotic Control Bureau, South Zone, Chennai reported in 2006 2 MLJ 248 : 2006 2 L.W. 590 by this court where it is observed that the well-settled preposition of law is that the confession statement of an accused implicating the co-accused can be used only when the trial is being conducted jointly with the co-accused. The operative portion of the above judgment of this court goes thus:-

If charges had already been framed as against the petitioner based on the incriminating materials available on record, there may not be any impediment for the prosecution to examine the co-accused, who was acquitted or convicted as the case may be to establish the guilt of the petitioner, but when the charges have not been framed against the petitioner and the petitioner has questioned the propriety of the trial Court in proposing to frame a charge without any foundation or basis, the prosecution cannot be permitted to project further evidence to be let in as a basis for framing a charge as against the petitioner.

In the case discussed in the above said decision, one of the accused was acquitted in a split up case from the original case. In the subsequent case with regard to the other co-accused who did not face the trial earlier he filed an application before this Court for quashing the proceedings against him and accepting his contention, this court passed an order of quashing the criminal proceedings against him.

In the aforementioned decision, the learned Judge followed the decision of the Apex Court in Suresh Budharmal Kalani @ Pappu Kalani Vs. State of Maharashtra, , in which Their Lordships have held that u/s 30 of the Evidence Act, 1872 a confession of an accused is relevant and admissible against the co-accused if both are jointly facing the trial for the same offence. Where the accused has been discharged from the case and would not be facing trial with the co-accused, his confession cannot be used against the co-accused.

In the above case before the Supreme Court, since one of the co-accused was discharged from the case and not facing trial with the petitioner, who preferred proceedings to quash before the Court, his confession cannot be used against him.

In Mayil Vahanan''s case, afore-stated, the petitioner was no doubt a co-accused but another co-accused who had given confession was acquitted by the Court in a split up case earlier. But the facts in the present case are quite distinguishable. In the case on hand, the co-accused, who has given the confession statement viz., the first accused has neither been discharged from the case nor was he set free by any other process. So, the above said decisions are not at all coming to the rescue of the petitioner herein.

In order to have a thorough glimpse of law on this subject, it is profitable to extract Section 30 of the Evidence Act.

Consideration of proved confession affecting person making it and others jointly under trial for same offence.

When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

{Explanation - "Offence" as used in this section, includes the abetment of, or attempt to commit, the offence.}

A careful reading of the Section shows that trial of both the accused jointly by the same Court is sine quo non for the Court to place reliance upon the evidence as to the confession statement given by co-accused. In other words, if the trial is being taken against one or more accused in a case in which at the inception some other co-accused were also available and they could not or do not face the trial for some reason or the other, the law puts an obstacle for the Court to place reliance upon the contents in the confession statements. But if all the accused in a case were tried jointly, there is no legal impediment for the Court to rely upon the confession statement.

In Section 30 of Indian Evidence Act, the words employed are "the Court may take into consideration such confession as against such other person", would indicate that it is the option of the Court to believe confession statement or not. Before taking into consideration the confession statement, the Court shall also see whether all the accused were tried jointly viz., the co-accused who has given the confession statement against the other co-accused was also tried jointly.

When the legal enforceability of such evidence of confession is considered, it does not come within the definition of "evidence" contained in Section 30 of the Evidence Act. Because it is not required to be given on oath, nor in the presence of the accused and it cannot be tested by cross-examination where more persons than one are jointly tried for the same offence, the confession made by one of them if admissible in evidence at all, should be taken into consideration against all the accused and not against the person alone who made it. If for any reason, the accused who made the confession could not be tried with the accused against whom the confession to be used, the Court shall not attach any value to the confession.

Section 30 of the Evidence Act provides that the Court may take the confession into consideration and thereby making evidence on which it may act. But it does not say that the confession tantamount to proof. The Court can only treat a confession as a one which is lending assurance to other evidence against the co-accused and the conviction based on a confession against the co-accused alone is bad in law.

The Hon''ble Supreme Court while analyzing the essential contents in Section 30 of the Evidence Act in a case, has observed thus:- Kalpnath Rai Vs. State (through CBI),

The first condition is that there should be a confession i.e., inculpatory statement.

Any exculpatory admission is not usable for any purpose whatsoever as against a co-accused. The second condition is that the maker of the confession and the co-accused should necessarily have been tried jointly for the same offence. In other words, if the co-accused is tried for some other offence, though in the same trial, the confession made by one is not usable against the co-accused. Third condition is that the confession made by one accused should affect himself as well as the co-accused. In other words, if the confessor absolves himself from the offence but only involves the co-accused in the crime, while making the confession, such a confession cannot be used against the co-accused.

If any of these conditions is inferred in a trial then the co-accused against whom a confession of another co-accused was proposed to be used, cannot be found guilty on the basis of the said confession. It is also settled that even if the confession is brought on record in a joint trial of the co-accused, it requires corroboration and the Court cannot convict the accused on the basis of confession alone. What weight should be attached to such evidence is the matter in the discretion of the Court. In case a co-accused in a confessional statement implicates another co-accused of having played entire role leaving himself as an innocent, such confession is not sustainable. When the Court has occasion to discuss the merits and demerits of a confession statement given by co-accused, the above said cardinal principles as stated by the Hon''ble Supreme Court and other High Courts have to be borne in mind and to proceed accordingly.

Adverting to the facts of the present case, the Court can appreciate the evidence on record as to the confession against this petitioner in the light of the above mentioned authoritative judicial principles. As on today, the confession stated to have been given by the first accused implicating the petitioner in the evidence remains valid and hence no valid ground is available to quash the criminal proceedings against the petitioner. The contentions on behalf of the petitioner do not merit consideration. The petition deserves for dismissal.

In fine, the petition is dismissed. Consequently, the connected miscellaneous petitions are also dismissed.