Narendra Kumar vs State Of Madhya Pradesh

This revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short 'the Code') has been preferred by the applicant being aggrieved by the order dated 05/12/2018 passed by Special Judge (NDPS Act), Mandsaur, in S.S.T. No.01/2018, whereby the trial Court has framed charges under Section 8/15, 29 of Narcotic Drugs and Psychotropic Substances Act, 1985.

The facts of the case, briefly stated, are that on 04/07/2017, police Afjalpur, Mandsaur received source information that illegal poppy straw is being transported in tempo truck Toofan (Silver Colour) bearing Registration No. MP 13 BA 1290 from the house of Gurjar, which is situtated at Bherugar and going towards Jabhua through Sitamau and Dingaonmali. On the basis of this information, Police after complying with necessary formalities, reached the spot, found tempo truck Toofan (Silver Colour) bearing Registration No. MP 13 BA 1290 coming from Sitamau and they tried to intercept vehicle, however, the driver diverted the vehicle towards agricultural field. Therefore police force chased the vehicle and apprehended the same in between time two persons got down from the cleaner seat of the vehicle and fled away from the spot. Thereafter, they saw one person in the driver seat, briefed him about the secret information and asked his name, who stated his name as Sachin. During search, total quantity of 1 quintal and 30 Kgs., of poppy straw was recovered from the vehicle. After completing necessary formalities Police arrested Sachin and recorded his statement under Section 27 of the Indian Evidence Act, in which he deposed that the contra-band was loaded by the present applicant along with other co-accused persons. On that basis, the applicant has also been implicated in the present crime.

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 co-accused Sachin, in which he stated that the contra-band was loaded by the present applicant along with 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 framing charges be set aside and the applicant be discharged from the aforesaid charges.

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 of co-accused Sachin, in which he stated that the contra-band was loaded by the present applicant along with 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."

Considering the fact that in the present case the only material to implicate the present applicant is the disclosure made by co-accused Sachin, which is not a legal evidence, therefore this petition filed under section 397 of 'the Code' is allowed. The impugned order dated 05/12/2018 by which the charges under Section 8/15, 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 are framed against the applicant, is hereby set aside and applicant is discharged from the aforesaid charges.

With the aforesaid, the revision petition stands disposed of. Certified copy as per Rules.