Madhya Pradesh High Court

Bharat Singh vs The State Of Madhya Pradesh on 12 December, 2022

Author: Anil Verma

                                   1


     IN THE HIGH COURT OF MADHYA PRADESH
                            AT INDORE
                               BEFORE
               HON'BLE SHRI JUSTICE ANIL VERMA
               MISC. CRIMINAL CASE No. 9308 of 2020

  BETWEEN:-
  BHARAT SINGH S/O SAJJAN SINGH,
  AGED ABOUT 27 YEARS,
  R/O: VILLAGE AAKLI, TEHSIL MANASA,
  DISTRICT NEEMUCH (MADHYA PRADESH)
                                                       .....PETITIONER
  (BY SHRI RAGHAV SHRIVASTAVA - ADVOCATE)

  AND
  THE STATE OF MADHYA PRADESH
  THROUGH P.S. MANASA,
  DISTRICT NEEMUCH (MADHYA PRADESH)
                                                      .....RESPONDENT
  (BY SHRI GOVIND PUROHIT - GOVERNMENT ADVOCATE)
Reserved on:     13th OF SEPTEMBER, 2022
Pronounced on: 12th OF DECEMBER, 2022
      This petition having been heard and reserved for orders, coming on
for pronouncement this day, the Court pronounced the following:


                               ORDER

1/ This petition under section 482 of the Code of Criminal Procedure, 1908 (in short Cr.P.C.) is preferred by petitioner for quashment of FIR bearing Crime No. 131/2017 dated 7.4.2017 for

offence under section 8, 18 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "NDPS Act") registered at police station Manasa, District Neemuch and all other consequential proceedings arising out of therefrom.

2/ Facts of the case in brief are that on 7.4.2017 ASI Mr. R.S. Sisodiya, Police Station Manasa District Neemuch received a discreet information from the informer that co-accused Pappu is coming from Anakali with some illegal opium in white colour plastic bag and going to Dewari Khaskhavasa via Aankalimgra by raw way to near Bajrang Bali Temple situated at Dewari Khawasa Road. Acting upon said information, police party reached on the spot and took position, after sometime according to the information received from the informer, the police party saw a person coming from a raw way as a pedestrian. He was intercepted and during search, 15 kg 400 gm opium has been recovered from co-accused Pappu and during investigation co-accused Pappu in his memorandum statement given under section 27 of Indian Evidence Act disclosed that alleged contraband was procured by theft with the help of present petitioner and other co-accused persons. The present petitioner has been implicated as an accused. Accordingly FIR bearing crime No. 131/2017 under section 8, 18 and 29 of NDPS Act has been registered and after due investigation charge sheet has been filed.

3/ Learned counsel for the petitioner submits that petitioner has been implicated in this offence only on the basis of memorandum of co-accused under section 27 of Indian Evidence Act and apart from that, there is no material to implicate the present applicant in this offence, because neither his name was mentioned in the FIR nor any seizure has been made from him, therefore, prima facie no offence is made out against him. Independent witness of the information,memo, section 42 and 50, seizure memo and other panchanamas Ramchandra (PW-1) and Manaklal (PW-2) have turned hostile and other witnesses have not supported the prosecution case and therefore, there is no possibility of conviction of present petitioner. The continuation of criminal proceeding would result into failure of justice and misuse of judicial mechanism. Hence he prays that FIR bearing crime No. 131/2017 under section 8, 18 and 29 of NDPS Act registered at police station Manasa District Neemuch be quashed. He also submits that in identical circumstances, coordinate bench of this Court had allowed CRR No.6181/2018 by order dated 31.10.2019. He also placed reliance upon following judgments of Hon'ble Apex court:-

1/    Pulukuri Kottaya and others Vs. Emperor
      (1947 0 AIR(PC) 67)
2/    Asar Mohammand and ors. Vs. The State of U.P.
      (2018 0 Supreme(SC) 1075)
3/    Kusal Toppo and Anr. Vs. State of Jharkhand



      (2018 0 Supreme(SC) 1047)


      4/     Per contra, learned counsel for respondent/State opposes the
prayer and prays for its rejection.
      5/     I have heard learned counsel for both the parties and

perused the case diary and other documents filed by both the parties.

6/ Before proceeding further, it would be trite to have look at the law. For the sake of convenience, section 27 of Indian Evidence Act is reproduced below:-

"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

7/ Before adverting the rival contentions of the parties, it will be useful to reiterate the law law down by Hon'ble Apex Court on the jurisdictional issues, firstly scope of jurisdiction of this Court under section 482 of Cr.P.C, in the matter of quashment of criminal proceedings; secondly, meaning concept and dimension of mischief as defined in section 429 of IPC.

8/ In the case of Zandu Pharmaceutical Works Ltd., & others Vs. Mohd. Sharaful Haque & Another, AIR 2005 SC 9, the Hon'ble Supreme Court has observed as under:-

"It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that intimation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

9/ Similar view has been reiterated by the Hon'ble Supreme Court in Devendra and Others Vs. State of Uttar Pradesh and Another (2009) 7 SCC 495:

"There is no dispute with regard to the aforementioned propositions of law. However, it is now well-settled that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the First Information Report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the First Information Report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing."

10/ In the instant case it is true that present applicant Bharat Singh has been implicated in this offence on the basis of memorandum statement under Section 27 of the Evidence Act given by co-accused person and nothing has been recovered from his possession. The coordinate Bench of this Court in the case of Afzal Vs. State of M.P. passed in CRR No.6181/2018 vide order dated 31.10.2019 has held that the information given or disclosure made by the co-accused to the police, which does not lead to any recovery, is not admissible in evidence against co-accused and on the basis of such inadmissible evidence, the prosecution of the petitioner cannot be continued and the FIR registered against the petitioner and all other consequential proceedings pending against the petitioner deserves to be quashed.

11/ In the case of Tofan Singh Vs. State of Tamil Nadu reported in 2021(4) SCC 1 it has been held by the Hon'ble Apex Court that confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial for an offence under the NDPS Act. But recently the Hon'ble Apex Court in the case of The State of Haryana Vs. Samarth Kumar reported in 2022 LiveLaw (SC) 622 has held as under:-

"8. In cases of this nature, the respondents may be able to take advantage of the decision in Tofan Singh Vs. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial."

12/ Therefore, in the light of the law laid down by the Hon'ble Apex Court in the case of Samarth Kumar (supra), it is clear that respondent may be able to take advantage of the decision in Tofan Singh (supra) case only at the stage of arguing the regular bail application or at the time of final hearing after conclusion of the trial.

The first stage arguing on regular bail has been already over and second stage has not yet come. Now on the basis of the aforesaid judgment, petitioner can take advantage of Tofan Singh (supra) case at the time of final hearing after conclusion of the whole evidence in the trial. Therefore, it is clear that interference under Section 482 of Cr.P.C. is not warranted at this stage.

13/ Consequently this petition under Section 482 of Cr.P.C. is hereby dismissed.

14/ Let a copy of this order be sent to the trial Court for necessary information.

C.C. as per rules.

(ANIL VERMA) JUDGE Trilok/-