Madras High Court
Sridhar vs The State Rep. By Its on 17 April, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.10896 and 10978 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.04.2025
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.Nos.10896 and 10978 of 2025
and Crl.M.P.No.7268 of 2025
Sridhar ... Petitioner / A6
in Crl.OP.10896/2025
1.Mathan Kumar
2.Ganga Gowri ... Petitioners / A1 & A2
in Crl.OP.10978/2025
Vs.
1.The State rep. by its
The Inspector of Police
Erode Taluk Police Station
Erode 638 002
(Crime No.235 of 2021)
2.The Sub Inspector of Police
Mr.Duraisamy
Erode Taluk Police Station
Erode District ... Respondents
in both Crl.OPs
COMMON PRAYER: Criminal Original Petition is filed under Section 482
of Cr.P.C., /528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, to call for
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the records in C.C.No.120 of 2022, on the file of Additional District and
Special Court for trial of cases under NDPS & EC Act, Coimbatore and
quash the charges against the petitioner.
For Petitioner : Mr.S.Patrick
in Crl.OP.10896/2025
For Petitioners : M/s.R.Subadra Devi
in Crl.OP.10978/2025
For Respondents
For R1 : Mr.A.Gopinath
Govt. Advocate (Crl. Side)
COMMON ORDER
Crl.O.P.No.10896 of 2025 has been filed by A-6 and
Crl.O.P.No.10978 of 2025 has been filed by A-1 and A-2, to quash the
proceedings in C.C.No.120 of 2022 pending on the file of the Additional
District Court and Special Court for Trial of cases under the E.C. Therefore,
this Court passed common order in these two criminal original petitions.
2.The 2nd respondent registered an F.I.R in crime No.235 of 2021
alleging that on 23.05.2021 at about 11.30 a.m. received a message from a
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reliable source with regard to procurement and sale of ganja by a couple
viz., A-7 and A-8 at their residence. After obtaining permission to conduct
their residential search, the 2nd respondent made a search and when they
attempted to escape, they were caught hold and based on their information,
A1, A2, A9 and A10 were arrested and remanded to judicial custody. Based
on their confession, the 2nd respondent had seized 232.5 kgs of ganja and
thereafter, registered an FIR in crime No.235 of 2021 for the offences under
Sections 8C, 20(b)(ii)(c) and 29(1) of NDPS Act, 1985.
3. During the course of investigation, the 2nd respondent recorded the
confession statements of the accused and implicated the above petitioners.
As per the confession statement that they also colluded with other persons
and convinced them to purchase contraband and the amount has been
deposited in A-3's bank account, pursuant to which, the 2nd respondent had
requested the bank authority to freeze the A-3’s bank account. Accordingly,
A-3’s IOB, District Court Branch, Erode, A/c.No. 182501000016431 had
been frozen.
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4.After the completion of investigation, the 2nd respondent filed a
final report and the same has been taken cognizance by the learned
Additional District Judge, Special Court for E.C. Act Cases, Coimbatore, in
C.C.No.120 of 2022.
5.Challenging the aforesaid proceedings, these Criminal Original
Petitions have been filed.
6. The learned counsel for the petitioners submitted that both the
petitioners, A-1 and A-2 are husband and wife and they were implicated as
accused, only on the confession statement of co-accused. On the strength of
the confession statement, there was no recovery and there is no material to
substantiate the confession statement of co-accused. Further, except the
confession statement of co-accused, no one has spoken about the overt act
of the petitioners to attract any of the charges as alleged by the prosecution.
On the strength of the confession statement of co-accused, the 2nd
respondent has filed a final report. The petitioners conspired with other
accused persons, procured contraband in their office and sell it. Therefore,
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there is no material, much less, a legal one to connect the other accused
persons with these petitioners in crime No.235 of 2021. The petitioners now
have been charged for the offence punishable under Section 120-B IPC and
Section 8C, 20(b)(ii)(c) and 29(1) of NDPS Act, 1985.
7. The learned counsel for the petitioners further submitted that a
confession of a co-accused cannot by itself be taken as substantive piece of
evidence as against another co-accused and at the best, it can be used to
lend assurance of this Court. In support of this contention, he relied upon
several judgments of the Hon’ble Supreme Court as well as this Court.
8. The learned Government Advocate (Crl. Side) submitted that there
are totally 15 accused, in which, the petitioners are arrayed as A-1, A2 and
A6. Though they were implicated as accused on the basis of the confession
statement of the co-accused, there are incriminating materials against the
petitioners. The entire crime proceeds were deposited with the A-3’s bank
account. Therefore, on the instructions of the Investigating Officer, the bank
account of A-3 had been frozen and he is not permitted to operate the same.
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9. Heard both sides and perused the materials available on record.
10. Admittedly, the petitioner viz.A6 was not named accused in the
FIR registered in crime No.235 of 2021. While investigation, on the
strength of the confession statement from the co-accused, they have been
implicated and a final report has been filed. On a perusal of the confession
statement of co-accused revealed that A-3 and A-5 being Advocates, the
other accused have acquaintance with regard to the conduct of cases and
with the help of A-3 and A-5, they have sold the contraband and shared the
proceeds. Pursuant to the said confession statement, there was no recovery
either the contraband or any cash from them.
11. Further, there is absolutely no material to show that they had
contact with other accused persons. The prosecution did not even produce
any call details or call records to substantiate the acquaintance between the
petitioners with other accused persons. Though A-3’s bank account has
been frozen, there is no money transaction from the other accused persons
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or from A-3 to other accused persons. That apart, from the confession
statements, no witnesses have spoken about the overt act of the petitioners.
Further, no other material was produced by the prosecution to attract any of
the charges levelled against them.
12. It is a settled law that the confession of a co-accused cannot be
taken as substantive piece of evidence against another co-accused.
Therefore, the contention of a co-accused person cannot be treated as
substantive piece of evidence and can be pressed into service only when the
Court is inclined to accept other evidence and feels the necessity of seeking
for an assurance in support of its conclusions deducible from the said
evidence. In criminal cases, where the other evidence adduced against an
accused person is wholly unsatisfactory and the prosecution seeks to rely on
the confession of a co-accused person, the presumption of innocence which
is the basis of criminal jurisprudence assists the accused person and compels
the Court to render the verdict that the charge is not proved against him and
so, he is entitled to the benefit of doubt.
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13. Further, on a perusal of the statements of the witnesses of hearsay,
that too, stereotype statements as if they heard about the petitioners from the
other accused persons. Therefore, their statements failed to support the case
of prosecution as against the petitioners. Therefore, the entire case of the
prosecution is foisted as against the petitioners with an ulterior motive to
wreak vengeance. In fact, except these cases, no other case is registered as
against the petitioners.
14. It is also relevant to rely upon the judgment of the Supreme Court
in Tofan Singh Vs State of Tamil Nadu [(2021) 4 SCC 1], wherein, it has
been held that the officers who are invested with powers under Section 53
of the NDPS Act are “police officers” within the meaning of Section 25 of
the Evidence Act, as a result of which, any confession statement made to
them would be a bar under the provisions of Section 25 of the Evidence Act
and cannot be taken into account in order to convict an accused under the
NDPS Act, i.e., the statement recorded under Section 67 of the NDPS Act
cannot be used as confessional statement in the trial of an offence under the
NDPS Act. Therefore, the confession statement will remain inadmissible in
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the trial of an offence under the NDPS Act.
15. On a perusal of the records also revealed that except the sole
material i.e., co-accused confession statement against the petitioners, cannot
translate into admissible evidence at the stage of trial and against the
petitioners. When that being the position, there is no absolute prima facie
case made against the petitioners to stand them before the trial Court.
Further, on examination of the materials produced by the prosecution
revealed that it does not prima facie establish any physical manifestation on
the part of the petitioners in any part of the conspiracy or its execution.
Therefore, the confession of the co-accused placed on record do not make
sufficient ground for proceeding against the petitioners. Further, it would
reveal that in order to wreak vengeance, a false case has been foisted against
the petitioners and the petitioners do not constitute conspiracy.
16. The Hon’ble Supreme Court also held in the case of Dipakbhai
Jagdishchandra Patel Vs. State of Gujarat and Another [(2019) 16 SCC
547], as under :
“The confession of co-accused cannot be treated as substantive
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evidence and can be pressed into service only when the Court is
inclined to accept other evidence and feels the necessity of
seeking for an assurance in support of its conclusions deducible
from the said evidence. In criminal cases where the other
evidence adduced against an accused person is wholly
unsatisfactory and the prosecution seeks to rely on the
confession of a co-accused person, the presumption of
innocence which is the basis of criminal jurisprudence assists
the accused person and compels the Court to render the verdict
that the charge is not proved against him, and so, he is entitled
to the benefit of doubt.”
17. As stated supra, in the case on hand, except the confession
statement of co-accused, there is no material to connect the petitioners in the
crime as alleged by the prosecution. Therefore, the confession statement of a
co-accused cannot be treated as a substantive piece of evidence and in the
absence of any substantive material, it could not be appropriate to proceed
as against the petitioners based on the confession statement of co-accused.
18. In view of the above, the entire proceedings in C.C.No.120 of
2022 pending on the file of the Additional District and Special Court for
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trial of cases under the E.C. Act, Coimbatore, cannot be sustained as against
the petitioners and accordingly, the same is quashed.
19.In the result, these Criminal Original Petitions are allowed.
Consequently, connected miscellaneous petitions are closed.
17.04.2025
kas
Index : Yes/No
Neutral citation : Yes/No
To
1.The Additional District and Special Court
for trial of cases under NDPS & EC Act
Coimbatore
2.The Inspector of Police
Erode Taluk Police Station
Erode 638 002
(Crime No.235 of 2021)
3.The Sub Inspector of Police
Mr.Duraisamy
Erode Taluk Police Station
Erode District
4.The Public Prosecutor
Madras High Court
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Chennai
G.K.ILANTHIRAIYAN. J,
kas
Crl.O.P.Nos.10896 and 10978 of 2025
17.04.2025
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