Vikram Singh vs State Of Madhya Pradesh

Pranay Verma, J

Heard.

This revision has been preferred by the petitioner/accused under Section 397/401 of the Cr.P.C for setting aside the order dated 22.08.2023 in Special Sessions Trial No.13/2022, pending before the Special Judge, N.D.P.S. Act, Manasa, District Neemuch whereby charges under Section 8/18 (B) read With Section 29 of the NDPS Act, 1985 has been framed against him.

As per the prosecution, on 25.03.2022 on receipt of a secret information, the Police recovered 6 k.g. 500 grams Opium from the possession of co-accused Maansingh which was being transported by him on a motorcycle bearing registration No.RJ-17-SF-3357. Thereafter, memorandum of Maansingh was recorded under Section 27 of the Indian Evidence Act in which he stated that he was transporting the contraband for being supplied to the present petitioner on the basis of which he has been implicated for the present offence. Upon completion of the investigation, charge-sheet has been filed by the Police before the Court concerned and thereafter the charges as aforesaid have been framed against him by the trial Court by order dated 22.08.2023.

Learned counsel for the petitioner submits that the petitioner is neither the owner of the motorcycle in which the transportation of the contraband was being made nor has any contraband substance been recovered from him. The owner of the motorcycle is some third person. The petitioner was not present on the spot at the time of the offence. He has been implicated only on the basis of memorandum of co-accused recorded under Section 27 of the Evidence Act. It is hence submitted that since there is no material whatsoever on record against the petitioner besides the memorandum of co-accused recorded under Section 27 of the Evidence Act which is not admissible in evidence since no recovery pursuant to the same has been made, the proceedings against the petitioner deserve to be quashed.

Learned counsel for the respondent/State has opposed the prayer and has submitted that there is sufficient material on record to proceed against the petitioner hence the petition deserves to be dismissed.

Heard counsel for the parties.

The complicity of the petitioner is based on the statements of co- accused person recorded under Sections 27 of the Evidence Act to the effect that the contraband recovered from his possession was being transported by him for being to the petitioner hence petitioner was involved in the transaction. However, neither anything was recovered from the possession of the petitioner nor he was found to be owner of vehicle transporting the contraband. No other evidence to connect the petitioner with the alleged crime could be collected during investigation. The petitioner has been implicated only on the basis of memorandum of co-accused person. On the basis of his own memorandum recorded under Section 27 of the Evidence Act no discovery of any fact has been made.

The issue as regards evidentiary value of memo of Section 27 of India Evidence Act has already been considered in detail and decided by this Court by order dated 18/02/2020 passed in Cr.R. No.511/2019 (Jaswant Singh vs. State of M.P.) and other connected revisions, in which it has been held as under :-

“24. Thus, it is explicit that the information given or disclosure made b y the accused, which does not lead to any recovery is not admissible in evidence against other co-accused persons and on the basis of such inadmissible evidence the prosecution is nothing but abuse of process of law, which should not be and cannot be allowed to perpetuate.”

9 . In the present case also, only evidence against the petitioner is the statement made by co-accused person to the Police to the effect that he was transporting the contraband for being supplied to the petitioner. This statement has been made by him before the Police. Charge-sheet has been filed by the Police and not by the Narcotics Department hence the alleged confessional statement of co-accused person does not fall within the purview of Section 67 ofNDPS Act. The statement recorded under Section 27 of Indian Evidence Act does not constitute evidence admissible in law and that being so it cannot be considered even at the present stage.

In the available facts of the case and in the interest of justice, applying the principles laid down in case referred to as above, as there is no admissible evidence against the petitioner, the petition deserves to be and is accordingly allowed. The impugned order dated 22.08.2023 passed in Special Sessions Trial No.13/2022 by the Special Judge, NDPS Act, Manasa, District Neemuch framing charges against the petitioner for offence punishable under Section 8/18 read with section 29 of the NDPS Act is hereby set aside and the petitioner is discharged from the said offence.