Giriraj Singh @ Ganganarayan vs State Of Madhya Pradesh

This revision petition under Section 397 read with Section 401 of Cr.P.C. has been preferred by the applicant being aggrieved by the order dated

04/06/2019 passed by Additional Sessions Judge, Special Court (NDPS Act), Jaora, District Ratlam, in S.S.T. No.15/2018, by which the trial Court has

framed charges under Section 8(C)/18(C), 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity 'The Act, 1985') against the

applicant.

The facts of the case, briefly stated, are that on 15/04/2018, police received a source information from informant that one eicher truck bearing

Registration No. MP 09 GF 1015 was going towards Mandsaur to Ratlam loaded with garlic and they kept illegal poppy straw in the truck. Thereafter,

Police prepared necessary punchnama, called two independent witnesses and reached the spot. After some time as per the information, Police force

saw one eicher truck bearing Registration No. MP 09 GF 1015, coming towards Mandsaur and after seeing the Police force two persons fled away

from the vehicle. During search of the vehicle, 124 bags of garlic and 69 bags of poppy straw was found. Total quantity of 15 quintal, 16 kgs., 500

grams of poppy straw was recovered from the truck. After that Police registered FIR bearing crime No.122/2018, arrested Firoz Khan, the owner of

the vehicle and his statement under Section 27 of the Indian Evidence Act was recorded. On the basis of his disclosure statement the driver and

cleaner of the vehicle were arrested and on interrogation cleaner Bhagwatilal informed that at the instance of the present applicant Girirajsingh @

Ganganarayan and other co-accused persons, namely Mittusingh and Azaz, the aforesaid contraband was being transported. After completion of

investigation charge sheet has been filed against the applicant and other accused persons for the aforesaid offence.

It is submitted by learned counsel for the applicant that the applicant is innocent and he has been falsely implicated in the present matter. It is

further submitted that the present applicant was not present on the spot and no contra-band has been recovered from his possession. The complicity of

the applicant is alleged only on the basis of the disclosure statement, said to have been made by Bhagwatilal, to the effect that the contraband was

being transported at the instance of the present applicant and other co-accused persons. However, no fact as such, could be discovered on the basis

of his statement, therefore, there is no legally admissible evidence within the meaning of Section 27 of the Indian Evidence Act, 1872 (for short 'The

Act') amounting to discovery of fact. Apart from this there is no other evidence available on record to connect the applicant with the present crime.

Hence he prayed that impugned order of the trial court be set aside and the applicant be discharged from the aforesaid offences.

Per contra, the learned Public Prosecutor supported the impugned order and prayed for rejection of this petition.

I have heard learned counsel for the parties and perused the record.

From the perusal of the material available on record, it appears that the applicant is not named in the F.I.R and no contraband has been recovered

from his possession. Neither he is the owner of the vehicle nor he was present in the vehicle at the time of the alleged incident. He was not

apprehended from the spot. He was implicated in the present matter only on the basis of disclosure statement made by Bhagwatilal, to the effect that

the contraband was being transported at the instance of the present applicant and other co-accused persons. The memorandum of co-accused is

nothing except a confessional statement given before the police officials, which is not admissible under Section 25 of the Evidence Act. Apart from

this the prosecution has not produced any evidence to show that the applicant was involved in the present crime.

Section 27 of 'The Act', in terms, provides that only that information which distinctly relates to the discovery of fact is admissible in evidence. In the

landmark decision of Privy Council in the case of Pulukuri Kottaya vs. Emperor, AIR 1947 P.C. 67, it has been held that unless there is discovery of

fact, statement made u/S. 27 of 'The Act' has no evidentiary value. It has further been held that in a case, it can seldom happen that information

leading to discovery of a fact can be made, the foundation of the prosecution case because it is one link in the chain of proof and the other links must

be forged in the manner allowed by law.

In the case of Hari charan Kurmi and Jogia Hajam Vs. State of Bihar, (1964) 6 SCR 623 it was observed by the Apex court :-

“As we have already indicated. this question has been considered on several occasions by judicial decisions and it has been consistently held that a

confession cannot be treated as evidence which is substantive evidence against a co-accused person. in dealing with a criminal case where the

prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other

evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence

may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which

it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbuttv, (1911)

I.L.R. 38 Cal. 559 at p. 588. a confession can only be used to ""lend assurance to other evidence against a co-accused"". In In re. Peryaswami Noopan,

(2) Reilly J. observed that the provision of s. 30 goes not 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 s. 30 may be thrown into the scale as an additional reason for believing that evidence.

In Bhuboni Sahu v. King, (1913) I.L.R. 54 Mad. 75 at p. 77. the Privy Council has expressed the same view. Sir. John Beaumont who spoke for the

Board observed that a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of

evidence"" contained in s. 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. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30,

however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but

the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the

consideration of all the facts proved in the case, it can be put into the scale and weighed with the other evidence."" It would be noticed that as a result

of the provisions contained in s. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is

considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic

sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of s. 30, the fact remains that it is not

evidence as defined by s. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the

confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the

quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the

judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in s. 30. The same view has

been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh 1952 S.C.R. 526 where the decision of the Privy Council in  Bhuboni

Sahu's(2) case has been cited with approval.â€​

Considering the fact that in the present case the only material to implicate the present applicant is the disclosure made by Bhagwatilal, which is not

a legal evidence, therefore this petition filed under section 397 of Cr.P.C. is allowed. The impugned order dated 04/06/2019 is hereby set aside and

applicant is discharged from the charges under Section(s) 8(C)/18(C), 29 of 'The Act, 1985'.

With the aforesaid, the revision petition stands disposed of.

Certified copy as per Rules.