Rakesh Gupta vs The State Of Madhya Pradesh
2025 Latest Caselaw 5789 MP

Madhya Pradesh High Court

Rakesh Gupta vs The State Of Madhya Pradesh on 21 March, 2025

Author: Dinesh Kumar Paliwal

Bench: Dinesh Kumar Paliwal

                                                              1




                                         IN THE HIGH COURT OF MADHYA PRADESH
                                                         AT JABALPUR
                                                           BEFORE
                                    HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                                       CRIMINAL REVISION CASE No. 5159 of 2024
                                                        RAKESH GUPTA
                                                            Versus
                                            THE STATE OF MADHYA PRADESH
                           Appearance:
                           (Shri Surendra Singh - Senior Advocate with Shri Aswani Kumar Dubey -
                           Advocate for the applicant)
                           (Shri B.D. Singh - Deputy Advocate General for the respondent/State)
                           .........................................................................................................................................................

                           Reserved on   : 03.03.2025
                           Pronounced on : 21.03.2025
                           .........................................................................................................................................................

                                                           ORDER

This criminal revision under Section 397/401 of the Code of Criminal Procedure, 1973 has been filed being aggrieved by order dated 05.06.2024, passed in SCNDPS No.56 of 2023 (State of M.P. Vs. Laxmiprasad and Others), District Rewa (M.P.), whereby charges under Section 8(B) read with Section 20(B)(ii)(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, herein after referred to as "NDPS Act") have been framed against the applicant.

2. As per prosecution case, on 17.01.2023, Sub Inspector K.L. Bagri, posted in Police Station Chorhata, Disrict Rewa received information that a huge quantity of Ganja (cannabis) is loaded in one black color Tata Zest Car bearing registration No.UP-86-U-8354. In it two persons are sitting

and are waiting for the customer. Information was recorded in general diary and after following due procedure contemplated in the NDPS Act, Sub Inspector K.L. Bagri along with Police staff reached Chorhata Bypass and found one black color car bearing registration No.UP-86- U-8354 parked by the side of Bypass road near Chandua Nala. In it, three persons were sitting. One of them who was sitting on the back seat taking notice of Police, fled away from the spot. However, two persons who were sitting in the car were apprehended. They introduced themselves as Ramashish Mourya and Laxmi Prasad Kushwaha @ Bablu. Search of the vehicle was taken in the presence of the witnesses and from dicky of vehicle, 32 packets having Ganja (cannabis) were seized. All packets were open and contraband was made homogeneous. In total 1 quintal 700 gram Ganja (Cannabis) was recovered. Samples were collected and panchnamas were prepared. The seized contraband was sealed. Applicants were arrested. In interrogation both co-accused persons informed that present applicant Raju Gupta, resident of Tamatar Mandi, Maihar was with them and they had brought Ganja along with him. After investigation, charge sheet was filed.

3. After completion of the investigation, charge sheet was filed against the co-accused persons and present applicant. The Special Judge, NDPS Act, Rewa framed the charges against the applicant too under Section 8(B) read with Section 20(b)(ii(c) and 29 of the NDPS Act. Applicant abjured his guilt. Being aggrieved by the aforesaid applicant has filed this revision.

4. Learned counsel for the applicant has submitted that applicant has been implicated as an accused on the basis of memorandum of co-accused Ramashish Mourya and Laxmi Prasad Kushwaha @ Bablu. He has nothing to do with the commission of offence. The charges framed against him are not tenable as nothing was seized from his possession. No evidence has been collected by the Police to establish that the seized Ganja (cannabis) was being transported by him along with co-accused persons and he along with co-accused persons was present in the vehicle and was waiting for the customers to dispose of the same. It is submitted that there is nothing on record to connect the present applicant with the alleged offence except the memorandum of the co-accused persons Ramashish Mourya and Laxmi Prasad Kushwaha @ Bablu recorded under Section 27 of the Evidence Act. It is argued that the confessional statement made under Section 27 of the Evidence Act is hit by Section 25 of the Evidence Act and cannot be taken into account in order to convict the applicant. In support of his contention, learned Senior counsel has place reliance on the judgement delivered in the case of Dipakbhai Jagdishchandra Patel Vs. State of Gujarat and Another, reported in (2019) 16 SCC 547 and Rahul Vs. State Delhi, Ministry of Home Affairs and Another, reported in (2023) 1 SCC 83.

5. On the other hand, learned Deputy Advocate General appearing on behalf of the respondent/State has submitted that sufficient evidence is available against the present applicant. It is contended that considering the memorandum of the co-accused persons and quantity of contraband

seized from the main accused persons, prima-facie, evidence of offence alleged against the applicant is available. It is submitted that applicant had fled from the spot noticing the Police presence and his presence can be proved through the dock identification in the evidence before Court. Therefore, learned trial Court has not committed any error in framing the charges as at the stage of framing of charge the detail appreciation of evidence is not permissible and some strong suspicion is sufficient to frame the charge. To buttress his contention, learned Deputy Advocate General has placed reliance upon the judgement delivered in the case of Rajesh Alias Sarkari and Another Vs. State of Haryana, reported in (2021) 1 SCC 118, Siddarth Vashisht Alias Manu Sharma Vs. State (NCT of Delhi), reported in (2010) 6 SCC and Angad Singh & Others Vs. State of Madhya Pradesh and Others, reported in 2016 SCC Online MP 7342.

6. I have heard rival submissions put forth by learned Senior Counsel appearing on behalf of the applicant and learned Deputy Advocate General appearing on behalf of the respondent/State and perused the material available on record.

7. In the case in hand, applicant Rakesh Gupta @ Raju has been enroped as an accused only on the basis of memorandum of co-accused persons Ramashish Mourya and Laxmi Prasad Kushwaha @ Bablu recorded under Section 27 of the Evidence Act. No evidence has been collected on the point that present applicant along with co-accused persons had brought the seized Ganja in the vehicle bearing registration

No. UP-86-U-8354 and he along with co-accused persons was waiting in car for customers to sell off the cannabis seized and he taking notice of the presence of Police had fled away from the spot.

8. It is settled position of law that at the time of framing of charge roving enquiry and meticulous appreciation of the evidence available on record is not required, but at the same time while exercising the revisionary jurisdiction if it is found that the charge framed by the trial court is grossly erroneous or has been made without any material on record, is based on no evidence or has been arbitrarily or perversely exercised then revisionary jurisdiction can be exercised.

9. On perusal of record, it is revealed that except the statement of co- accused Ramashish Mourya and Laxmi Prasad Kushwaha @ Bablu, there is nothing on record against the applicant. The statement of co-accused is a weak type of evidence. In the case of Superintendent of Customs Vs. Bhanabhai Khalpathai Patel-AIR 1992 SC 1583, it has been made clear that statement of the co-accused given before the authorities cannot be relied upon to corroborate the evidence of co-accused who has turned as a prosecution witness. It was further held that conviction based solely on such a statement was not sustainable.

10. Hon'ble Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu - AIR 2020 SC 5592 has held as under:

"The confessional statement recorded under Section 27 of the Evidence Act is hit by Section 25 of the Evidence Act and has no evidentiary value. Section 25 of the Evidence Act, 1872 states that a confession made to any police officer, whatever

his rank, cannot be relied upon against a person/accused of any offence. The involuntariness or otherwise of the confession being irrelevant"

11. The Hon'ble Apex Court in the case of Dipakbhai Jagdishchandra Patel (supra) in para 23 and 24 has observed as under:-

"23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.

24. Undoubtedly, this Court has in Suresh Budharmal Kalani, taken the view that confession by a co-accused containing incriminating matter against a person would not by itself suffice to frame charge against it. We may incidentally note that the Court has relied upon the judgment of this Court in Kashmira Singh v. State of M.P. We notice the observations, which have been relied upon, were made in the context of an appeal which arose from the conviction of the appellant therein after a trial. The same view has been followed undoubtedly in other cases where the question arose in the context of

a conviction and an appeal therefrom. However, in Suresh Budharmal Kalani, the Court has proceeded to take the view that only on the basis of statement of the co-accused, no case is made out, even for framing a charge."

12. In the case of Rahul Vs. State Delhi (supra), Hon'ble Apex Court has held as under:

"At this juncture, it may be noted that the trial court had allowed the entire disclosure statements of the three accused to be admitted in evidence by exhibiting the same as Ex. PW-39/B, PW-41/B and PW-41/C. The said statements were recorded by the PW-48, Sandeep Gupta, when they were in police custody. The said statements being in nature of the confessions before the police were hit by Section 25 of the Evidence Act. The law in this regard is very clear that the confession before the police officer by the accused when he is in police custody, cannot be called an extra-judicial confession. If a confession is made by the accused before the police, and a portion of such confession leads to the recovery of any incriminating material, such portion alone would be admissible under Section 27 of the Evidence Act, and not the entire confessional statements. In the instant case, therefore the trial court had committed gross error in exhibiting the entire disclosure statements of the accused recorded by the PW-48 P1 Sandeep Kumar Gupta, for being read in evidence. Though, the information furnished to the Investigating Officer leading to the discovery of the place of the offence would be admissible to the extent indicated in Section 27 read with Section 8 of the Evidence Act, but not the entire disclosure statement in the nature of confession recorded by the police officer"

13. In the case of Anoop Jaiswal alias Jassa Vs. State of M.P., vide order dated 13.09.2021 passed in Cr.R.No.1341/2021, the co-ordinate bench of this court held as under:-

"The Narcotic Drugs and Psychotropic Substances Act, 1985 prescribes offences which are very severe. Section 54 of the NDPS Act provides presumption of Commission of an offence under this Act. If the accused fails to account satisfactorily for the possession of the contraband. Section 66 of the NDPS Act provides presumption as to documents seized from the accused. While framing a charge, the court is expected to apply its mind to the entire record and documents placed therewith before the court. No meticulous examination of evidence is needed for considering whether the case would end in conviction or not. However, the court is required to consider and apply its judicial mind, whether the allegations taken as a whole will, prima facie constitute an offence and if so, whether continuation of proceedings is an abuse of process of court leading to injustice."

14. As far the case relied on by learned Deputy Advocate General are concerned, the facts of case of Rajesh Alias Sarkari (supra) are not applicable in the facts of the present case as in the aforesaid case, question was with regard to conducting a test identification parade and in that case, father and brother of the deceased had claimed to see the incident and deceased and accused were known to each other prior to the occurrence. In those circumstances, Hon'ble Apex Court was of the view that TIP does not constitute substantive evidence and the failure to hold it does not ipso facto make the evidence of identification inadmissible. It was also observed that there is no specific provision either in the Cr.P.C. or the Indian Evidence Act, 1872 which lends statutory authority to identification parade. The identification of the

accused in the Court constitute substantive evidence. In that case witness in his statement recorded under Section 161 Cr.P.C. had stated that he had seen applicant fleeing from the spot and he can identify him. While in the case in hand, witnesses have not made any such statement. Therefore, facts of the case of Rajesh Alias Sarkari (supra) are not identical to the facts of this case. Hence, no benefit can be given to the prosecution on the basis of the said case.

15. In the case of Siddarth Vashisht Alias Manu Sharma (supra) controversy was involved with photo identification, while in the case in hand, it is not the case of the prosecution that any of the witnesses had seen present applicant fleeing from the spot and he can identify him. Therefore, the facts of the above case is also not applicable. Same is the position with Angad Singh & Others (Supra) because in that case in the statements recorded under Section 161 of Cr.P.C the complainant and other witnesses had clearly indicated that they had seen the accused and will be in a position to identify them and in that scenario the petition under Section 482 of Cr.P.C. was dismissed.

16. In the case in hand, except the memorandum of co-accused Ramashish Mourya and Laxmi Prasad Kushwaha @ Bablu, no material has been collected by the prosecution to the effect that any of the witnesses had seen the present applicant fleeing from the spot by opening the gate of the car and none of the witness in his statement recorded under Section 161 of Cr.P.C. has stated that he had seen the

applicant fleeing from the spot and can identify him. Therefore, it is apparent that there is nothing on record except the memorandum of the co-accused Ramashish Mourya and Laxmi Prasad Kushwaha @ Bablu. There is no other evidence or document or seizure from the applicant which may form basis of the strong suspicion or which may implicate or connect the applicant with the alleged offence. In the criminal cases where the other evidence adduced against the accused persons is wholly unsatisfactory and the prosecution seeks to rely on the confession of the co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assist the accused person and compels the Court to render the verdict that the charge is not proved against him.

17. The proceeding on the basis of that it is a confession by the co- accused persons and there is no recovery from the applicant and there is no other material available on record on the basis of which even a strong suspicion can be aroused, I find myself unable to agree with the order of framing of the charge against the accused. It is also worth mentioning that in similar circumstances in some of the case laws discussed above, the applicants therein were discharged in respect of charge under Section 8, 20, 29 of the NDPS Act.

18. In light of the aforesaid discussion, this criminal revision is allowed. Impugned order dated 05.06.2024 (Annexure A/2), passed by the Special Judge (NDPS Act), District Rewa in SCNDPS No.56 of

2023 (State of M.P. Vs. Laxmiprasad and Others), District Rewa (M.P.) framing charges against the present applicant Rakesh Gupta @ Raju under Section 8(B) read with Section 20(B)(ii)(c) read with Section 29 of the NDPS Act is hereby set aside. Applicant is discharged from the aforesaid offence. However, in respect of the other co-accused, trial be concluded.

(DINESH KUMAR PALIWAL) JUDGE Jasleen