Mukesh Bilwah (Bilwar) vs The State Of Madhya Pradesh
2022 Latest Caselaw 2876 MP

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  THE HIGH COURT OF MADHYA PRADESH
           M.Cr.C.No.10583/2022
            (Mukesh Bilwah (Bilwar) Vs. The State of Madhya Pradesh and others)


Jabalpur; Date:02/03/2022

         Shri Pankaj Dubey, Counsel for the applicant.

         Shri Prakash Gupta, Panel Lawyer for the respondent-

State.

By way of this application under section 482 of the Code of Criminal Procedure, 1973, the applicant has prayed for quashing and setting-aside FIR bearing Crime No.1024/2021 registered at Police Station Garha District Jabalpur for the commission of offence punishable under Sections 109 and 34 of IPC along with Section 34 (2) of M.P. Excise Act.

(2) Shorn of unnecessary details, the short facts of the case are that, the police on 25/11/2021 during the course of searching at a check point, stopped a Car bearing Registration No.MP. 49 C 1431 of TATA Safari Make, which was driven by one Sunny @ Raja Ahirwar resident of Gorkhpur, Jabalpur. On search, it is found that total 397 bulk litres of country made liquor was illegally being transported in the said vehicle and the driver of the vehicle was not having valid documents to show said transportation legal, therefore, driver was arrested and case has been registered against him.

(3) The submission of counsel for the applicant is that the applicant has been made accused only on the basis of memorandum of driver, as he has stated that the applicant and two other persons namely Pawan Chakraworthy and Adarsh Sonker are involved in the crime. He urged that the vehicle which was seized by the police was registered in the name of

Santosh Kumar Chadhar; it was not in the name of the present applicant. He strenuously argued that except the fact that driver has informed the police that seized liquor has been brought by him from the shop of present applicant, nothing more is available with the prosecution to implicate the present applicant as an accused in the crime. The attention of this Court was drawn towards the notice (Annexure A-6) dated 18/12/2021 issued under Section 160 of Cr.P.C., whereunder the applicant has been called by the police to get his statement recorded under Section 161 of Cr.P.C. It also contains that on the basis of statement of co-accused Raja Ahirwar recorded under Section 161 of Cr.P.C. applicant has been made accused, therefore, his presence is required. He further argued that in the application moved by the applicant under Section 438 of Cr.P.C. interim protection was granted by this Court vide order dated 03/01/2022 passed in M.Cr.C.No.63183/2021. It was further pleaded that there is no provision under the criminal jurisprudence as well as in the code of Criminal Procedure to get the statement of accused recorded under Section 161 of Cr.P.C. Consequently, he submits that present applicant cannot be made accused on the basis of statement of co-accused that too recorded under Section 161 of Cr.P.C. To buttress his submission, he cited various judgments, in which this Court has already held that a license holder cannot be made accused under Section 34 (2) of Excise Act, on the basis of statement or memorandum of co-accused, if license holder is not arrested from spot or any incriminating material is available with the prosecution, so as to make him involved in the said crime. He relied upon the order passed in (Dashrath Singh Vs. State of M.P.) reported in (2006) 1 MPLJ 588. The relevant extract is reproduced as

under:-

8. The only reason which has been assigned by the Courts below convicting the present applicant is that though the impugned liquor was not found from the possession of the present applicant nor he is the owner of the tractor and trolley since he was sitting in the tractor alongwith co-accused Karua and he is also a resident of Dholpur, therefore, the liquor which was kept in the heap of the sand must be in the knowledge of the applicant Dashrath. On scrutiny of the record, I am of the view that the reasons which are assigned to convict the present applicant are not cogent since there is no evidence in that regard. On going through Ex.P.1 which is a seizure memo, it is gathered that the liquor was seized from the possession of Karua. On going through Ex.P/8, it is found that the impugned tractor and trolley belongs to Dhaniram and therefore, neither the applicant is the owner of the tractor and trolley nor the liquor was found from his possession. There is no evidence that applicant was aware about the liquor which was kept in the heap of sand. Since there is no evidence against the applicant, the view of this Court is that the has been wrongly convicted.

9. Resultantly, this revision succeeds and is hereby allowed. The conviction of applicant is hereby set aside. He is on bail, his bail bonds are discharged. The amount of fine, if deposited, he refunded to the applicant.

He further relied upon the judgment passed in (Suresh Upadhyay Vs. State of M.P.) (2014) 3 MPHT 91. The relevant part of the order is axiomatic and for ready reference the same is reproduced as follows:-

6. After taking into consideration the entire arguments advanced by learned counsel for the parties and the material available on record, it appears that there is no cogent evidence collected by the prosecution against the petitioner, which connects him to the present crime, therefore, only on the basis of disclosure statement of co-accused, petitioner cannot be convicted. On giving anxious consideration to the issue involved in this petition, this Court is of the considered view that only on the basis of disclosure statement of accused Shailendra Singh petitioner cannot be grilled, hence, the petition filed by the petitioner is allowed. FIR registered at Crime No.268/2013 for the offence punishable under Sections 34(1), (2) and 47(A) of the M.P. Excise Act and also the entire subsequent criminal proceedings are hereby quashed.

He also relied upon the order passed in M.Cr.C.No.4646/2017 (Girish Bhatnagar Vs. State of M.P.). In the said order, the following reasoning was given, which are reproduced hereunder:-

Learned Public Prosecutor fairly conceded that except the statement of the co-accused recorded under Section 27 of Evidence Act, there is no other admissible evidence available against the applicant.

I have considered the submissions of the learned counsel and on perusal of FIR, it appears that accused Arvind Singh Tomar was found in possession of country made liquor and was not having any license. He had disclosed that liquor has been purchased from the shop of the applicant.

On behalf of the applicant, copy of the license has been produced which reveals that license has been granted by the Collector District Morena in favour of the applicant for retail sale of country made liquor from 01/04/2016 to 03/03/2017. The applicant is having a valid license, therefore, has right to sell to liquor. Even it is assumed that co-accused has purchased the liquor seized from his possession, prima facie, it cannot be said that the applicant has committed any offence under Section 34 & 42 of M.P. Excise Act as there is no breach of any condition of the license granted in favour of the applicant. In such circumstances, the prosecution of the applicant certainly amount to a breach of process of law. Hence, it fit case to exercise that inherent powers of this Court.

Further he has relied upon an order passed in M.Cr.C.No.11870/2016 (Gajrendra Singh Bhadoria Vs. State of M.P.). The relevant part of order is reproduced as under:-

I have considered the submissions of the learned counsel and on perusal of (Annexure P/1) FIR, it appears that co-accused-Kallu Rathore has been apprehended by the police having found in possession of country made liquor and not having any license. He discloses that same has been purchased from the Teka of Gajendra Singh Bhadoria at Daboh District Bhind.

On behalf of the petitioner, copy of the license has been filed which reveals that license has been granted by the Collector District Bhind for retail sell of country made liquor from 01.04.2016 to 31.03.2017 in favour of the peti-

tioner at Daboh.

Considering that petitioner is having a valid license he has right to sell the liquor even if it is assumed that co- accused has purchased the liquor seized from his posses- sion. Prima facie, it cannot be said that the petitioner has committed any offence under Sections 32 or 54 of M.P. Excise Act as there is no breach of any condition of the li- cense granted infavour of the petitioner.

In such circumstances, the prosecution of the peti- tioner certainly amount to a breach of process of law. Hence, it is fit case to exercise the inherent powers of this Court.

Consequently, this petition is allowed. FIR regis- tered at Crime No.160/2016 under Section 34, 42 of M.P.Excise Act at Police Station-Daboh, District-Bhind is hereby quashed.

Further, this Court in M.Cr.C.No.189/2013 (Rajveer Singh Vs. State of M.P. and others) has held as under:-

6. From the perusal of the FIR, it is evident that present petitioner was not named in the FIR, even he was not present on the spot at the time of seizure of car as well as liquor. Present petitioner has been implicated as an ac- cused only on the basis of disclosure statement of co-ac- cused Rishikesh @ Rishi under Section 27 of the Evidence Act that the liquor was purchased from the liquor shop of the petitioner. It is also clear that the name of present peti- tioner is not mentioned in the statement of Dharmendra Singh and Head Constable Rajpal Singh who were present at the time of alleged seizure.

7. Except the aforesaid disclosure statement, there is no other evidence available on record which may establish that illegal liquor was belonging to the petitioner. It is also not the case of the prosecution that vehicle in which the il- legal liquor was being transported was that of the peti- tioner. So far as the evidence of memorandum given by the co-accused person under Section 27 of the Evidence Act is concerned, his confessional statement to police which is also hit by Section 25 of the Evidence Act cannot be ac- cepted as a legal evidence against the petitioner in absence of any other incriminating piece of evidence.

8. This Court in Ashok Nanda (Supra) para 12 has ob- served as under :-

"12. As far as the evidence of memorandam given by the co-accused persons under Section 27 of the Evidence Act is concerned, their confessional statements to police cannot be accepted as legal evidence against petitioners in the ab- sence of any other incriminating piece of evidence.Except the above circumstances, absolutely no other evidence has been collected and produced by the prosecution prima fa-

cie to indicate that petitioners hatched conspiracy with other accused persons to commit murder of complainant

Rajendra Agal."

9. This Court in Prakash Singh v. State of M.P., 1994(II) MPWN 72 has held as under :-

"The statement admissible under section 27 of the Evi- dence Act are the statements which could be used as evi- dence against the maker and not against any other person. Under section 27 only portions of information given by an accused which are admissible are those which relate dis- tinctly to the facts discovered thereby. Consequently state- ments by an accused which do not relate to aforesaid facts but involve other accused are inadmissible under Section 27 against the later."

10. This Court in Raghu Thakur v. State of M.P., 2012(4) M.P.H.T.116 has observed in para 6 as under :-

"6. A plain reading of Section 27 of Indian Evidence Act indicates that the statement under Section 27 of Indian Evi- dence Act is an exception to the ban imposed upon the Courts to utilize the confessional statement made under Sections 25 and 27 of Indian Evidence Act, so as to protect a person making disclosure from being falsely implicated by the police in whose custody that person remains at the time of making disclosure. The provision of Section 27 of Indian Evidence Act further indicates that the facts dis- closed under Section 27 of Indian Evidence Act can be used only against the person making disclosure and not against any other person.

11. So far as invoking the powers under Section 482 of Cr.P.C. for quashing the criminal proceeding is concerned, the Apex Court in the case of Zandu Pharmaceutial Works Ltd. and others Vs. Mohd. Sharaful Haque and another, (2005)1 SCC 122, in great detail considered the scope of powers under Section 482 of the Code of Crimi- nal Procedure for quashing the criminal proceeding relying on the earlier decision rendered by the Apex Court in the Case of R.P. Kapur Vs. State of Punjab -AIR 1960 SC 866 and State of Harayna Vs. Bhajan Lal, 1992 Supp (1) SCC 335, in which it was held:

"9.In R.P. Kapur v. State of Punjab this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their en- tirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."

12. In view of the aforesaid and considering the legal posi- tion and in view of the fact that no evidence is available against the petitioner except the disclosure statement under Section 27 of the Evidence Act of co-accused Rishikesh @ Rishi, FIR as well as Criminal Case No.1898/2012 in re- spect of Crime No.39/12 registered at police Station, Ritho- rakalan, Distt. Morena, for the offence punishable under

Section 34(2) of the Excise Act, so far as it relates to the pe- titioner, deserves to be quashed.

(4) Counsel for the applicant submits that the memorandum cannot be the basis for making the applicant an accused because memorandum, as per Section 27 of Evidence Act is not admissible under the law. He submits that applicant is a license holder and was not available on spot. No other material has ever been collected by the prosecution to prove the fact that applicant was involved in illegal transportation of country made liquor or the same has been brought from his shop.

(5) Per contra, counsel appearing for the State opposed the argument advanced by counsel for the applicant stating that although applicant has been made accused on the basis of memorandum, but it cannot be ignored at this stage only because the applicant is license holder and was not available on spot.

(6) I have heard exhaustive submissions made by counsel for parties at length.

(7) In view of discussion made above and perusal of record, I find that the criminal prosecution of the petitioner would amount to abuse of process of the Court. This is a fit case in which this court can exercise the inherent power provided under Section 482 of Cr.P.C. to prevent the abuse of process of law. Hence, to secure the ends of justice, the impugned FIR bearing Crime No.1024/2021 registered against the applicant at Police Station Garha Jabalpur is hereby set-aside.

Resultantly, Petition stands allowed.

(Sanjay Dwivedi) SUSHMA Judge sushma Digitally signed by SUSHMA KUSHWAHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=06cc7ec7869e71b23c61580e1aaad85481f7ea48cd875c18e5a6878

KUSHWAHA 7947df0c5, pseudonym=3162691BECDE33282E19E0CEBA20524E31482089, serialNumber=0844205F54108DDA40342AD423EF1D3DE29D4F5E3FC94C C59B05D91905B104C7, cn=SUSHMA KUSHWAHA Date: 2022.03.07 17:44:11 +05'30'