Suresh Kumar vs State Of Rajasthan

Arun Monga, J

Quashing of a charge-sheet No.193/2021 dated 22.12.2021 arising out of FIR No.288/2021 dated 01.11.2021, registered at P.S. Ladnu, District Nagaur, for the offences under Sections 16 and 19/54-A of the Rajasthan Excise Act qua the petitioner is sought herein. The petitioner has also challenged the order dated 23.12.2021, passed by the learned Additional Chief Judicial Magistrate, Ladnu, Nagaur by which cognizance of the offence under Section 19/54-A of the Rajasthan Excise Act has been taken against the petitioner. The petitioner has assailed another order dated 20.10.2022 passed by the learned Additional Chief Judicial Magistrate, Ladnu, Nagaur, vide which application filed under Section 451 Cr.P.C. for supardari has been dismissed.

The relevant facts as pleaded in the petition are that on 31.10.2021, police party, during the routine patrolling, on secret information reached at the residence of one Alam Khan where three persons, namely, Dharam Singh, Mahaveer Tholia and Babulal were found and heavy quantity of illegal liquor was also stored at the premises. It is stated that the police party also recovered a vehicle Bolero Camper, which was parked in the area, having no number plate. The same was seized during investigation.

2.1. After investigation, charge-sheet for the offences under Section 19/54-A of the Rajasthan Excise Act was filed inter alia against the petitioner. Thereafter, the learned trial court took cognizance of the offence under Section 19/54-A of the Rajasthan Excise Act against the petitioner vide order dated 23.12.2021.

2.2. During the trial, the petitioner, being owner, also filed an application under Section 451 Cr.P.C. for releasing the alleged offending vehicle, which was dismissed vide order dated 22.10.2022. Hence, this petition.

In the aforesaid backdrop, I have heard learned counsel for the petitioner and the learned Public Prosecutor and perused the case file.

The sum and substance of the arguments canvassed by the learned counsel for the petitioner is that other than custodial statements of the co-accused, whereby they implicated the petitioner merely on the ground that he is the owner of the Bolero Camper vehicle, which was intended to be used for transportation of the illicit liquor, seized by the police officials, there is nothing on record to array him as an accused.

He would further argue that other than the custodial statements, there is not an iota of evidence discovered by the police officials in course of interrogation. He relies on a judgment of this Court rendered in the case of Pappu Singh Vs. State of Rajasthan & Anr. [2022(4) Cr.L.R. (Raj.) 1761] to contend that the custodial statements alone cannot be the basis of arraying the petitioner as the accused without any independent corroborating evidence to implicate him in the matter.

Per contra, learned Public Prosecutor would contest the aforesaid contentions of the learned counsel for the petitioner and seeks dismissal of the petition. He submits that it is incorrect to suggest that there is no other corroborating evidence. He argues that the illicit liquor was seized while it was still loaded in the offending vehicle, i.e. Bolero Camper. Therefore, being the owner of the vehicle, since no satisfactory explanation has come-forth from the petitioner in course of interrogation as to why his vehicle was used, he has rightly been arrayed as an accused.

Having perused the case file and after hearing the rival contentions, I am of the view that the contention of the learned Public Prosecutor is factually incorrect. The same flies in the face of the contents of the FIR, which is the very first statement and has to be taken nearest to the truth to ascertain whether the illicit liquor was recovered from the vehicle or from an alternative place. It is nowhere stated in the FIR that the vehicle in question was seized at the time of search and the illicit liquor was loaded in the said vehicle. It transpires that subsequently, in course of interrogation, it was so found that the Bolero Camper vehicle was since parked near the premises, which was searched and coupled with the statement that the Bolero Camper vehicle was intended to be used for transportation of the said liquor, the petitioner has been implicated being the owner of the said vehicle.

What thus transpires is as below:-

(i) The only piece of evidence against the petitioner is concededly the custodial statement of co-accused.

(ii) Other than the aforesaid statement, there is no corroborating evidence of any kind so as to suggest the culpability of the petitioner.

(iii) The petitioner was not apprehended at the time of search conducted by the police officials.

(iv) The illicit liquor was seized from the premises of Alam Khan, as per the contents of the FIR and not from the vehicle.

(v) The vehicle in question was also not seized at the time of search but was subsequently impounded on the statement of co-accused.

To sum up, neither the vehicle in question was used in carrying the illicit liquor nor is there any evidence of any kind against the petitioner to implicate in the FIR. Reference in this context may be had to Section 25 of the Evidence Act, 1872, which states as under:-

“25. Confession to police-officer not to be proved.– No confession made to a police-officer, shall be proved as against a person accused of any offence.”

Section 25 of the Indian Evidence Act, 1872, thus clearly states that confessions made to police officers cannot be used against an accused. Since the only evidence is the custodial statement of the co-accused, which is inadmissible in court, the charge-sheet against the petitioner lacks any legally acceptable evidence. Resultantly, the trite law being that the custodial statement of a co-accused cannot be the sole basis to substantiate any evidence against another accused and in the absence of any corroborating evidence either averred or direct or indirect, the petitioner deserves benefit thereof. Given that the custodial statements are the only evidence, applying the principle of "falsus in uno, falsus in omnibus" (false in one thing, false in everything), the unreliability of custodial statements calls into question the entire foundation of the case against the petitioner.

Moreover, the prosecution of the petitioner based solely on the custodial statements of co-accused without any independent or corroborative evidence violates the petitioner’s right to a fair trial. Article 21 of the Indian Constitution guarantees the right to life and personal liberty, which includes the right to a fair trial. The absence of corroborative evidence means the case against the petitioner lacks the necessary legal and factual basis. Confessions made to police officers being inadmissible, such statements cannot thus form the basis of prosecution.

Furthermore, the petitioner was not present at the scene when the illegal liquor was seized. The vehicle was merely parked near the premises of another individual (Alam Khan), and there is no direct evidence showing the petitioner's involvement in the transportation or intended use of the vehicle for transporting illicit liquor. Merely being the owner of the vehicle does not establish that the petitioner had possession or control over the illegal liquor. Ownership alone is insufficient to establish guilt under the Rajasthan Excise Act, which requires active participation or knowledge.

In the premise, the continuation of proceedings against the petitioner, based solely on weak and inadmissible evidence, amounts to an abuse of the process of law. The legal system should not be used to harass individuals without sufficient evidence to substantiate the charges.

As an upshot, the FIR qua the petitioner is quashed with consequences to follow including the charge-sheet dated 22.12.2021 filed to the extent of implicating the petitioner as well as the order dated 23.12.2021 by which cognizance of the alleged offences has been taken against the petitioner. The vehicle in question is also ordered to be released on supardari on usual terms to be determined by the learned trial court.

Pending application(s), if any, shall also stand disposed of.