Madras High Court
Ezhilarasan vs The State on 7 February, 2025
Author: G.K. Ilanthiraiyan
Bench: G.K. Ilanthiraiyan
Crl.O.P. Nos.8022, 14144 & 21505 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.02.2025
CORAM
THE HONOURABLE Mr. JUSTICE G.K. ILANTHIRAIYAN
Crl.O.P. Nos.8022, 14144 & 21505 of 2023
AND
Crl.M.P.Nos.8743, 8744, 14796 & 14797 of 2023
Crl.O.P.No.8022/2023
Ezhilarasan .. Petitioner
Vs.
1.The State
Rep. by Superintendent of Police
SP Office, Erode District
(Ref Cr.No.235/2021 dt.23.05.2021)
2.The Inspector of Police
Erode Taluk police Station
Rangampalayam
Erode District
3.The Manager
IOB Bank
District Court Branch
District Court Campus
Erode District .. Respondents
Criminal Original Petition under Section 482 Cr.P.C. to direct the
2nd respondent to defreeze the petitioner's bank account bearing
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No.182501000016431 of the petitioner held at IOB, District Court Branch, Erode
District and to permit the petitioner to operate the said account which were frozen
by the 2nd respondent.
For Petitioner :: Mr.Deepan Uday
For RR1 and 2 :: Mr.R.Vinothraja
Government Advocate (Crl. Side)
Crl.O.P.No.14144/2023
S.Nathiya .. Petitioner
Vs.
1.The State rep. by
The Inspector of Police
Erode Taluk police Station
Erode District
(Ref Cr.No.235/2021 dt.23.05.2021)
2.The Sub-Inspector of Police
M.Duraisamy
Erode Taluk Police Station
Erode District .. Respondents
Criminal Original Petition under Section 482 Cr.P.C. to call for the records
and quash the prosecution in C.C.No.120/2022 registered for offences under
Sections 120(B), 212 IPC and Sections 8(c) r/w 20(b)(ii)(c) and 29(1) of NDPS
Act, 1985 on the file of the Additional District and Special Court for trial of cases
under the E.C. Act, Coimbatore.
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Crl.O.P. Nos.8022, 14144 & 21505 of 2023
For Petitioner :: Mr.C.Arun Kumar
For RR1 and 2 :: Mr.R.Vinothraja
Government Advocate (Crl. Side)
Crl.O.P.No.21505/2023
E.Ezhilarasan .. Petitioner
Vs.
1.The State rep. by
The Inspector of Police
Erode Taluk police Station
Erode District
(Ref Cr.No.235/2021 dt.23.05.2021)
2.The Sub-Inspector of Police
M.Duraisamy
Erode Taluk Police Station
Erode District .. Respondents
Criminal Original Petition under Section 482 Cr.P.C. to call for the records
and quash the proceedings in C.C.No.120/2022 registered for offences under
Sections 120(B) IPC and Sections 8(c) r/w 20(b)(ii)(c) and 29(1) of NDPS Act,
1985.
For Petitioner :: Mr.C.Arun Kumar
For RR1 and 2 :: Mr.R.Vinothraja
Government Advocate (Crl. Side)
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Crl.O.P. Nos.8022, 14144 & 21505 of 2023
COMMON ORDER
Crl.O.P.Nos.21505/2023 and 14144/2023 has been filed by A-3 and A-5,
respectively, to quash the proceedings in C.C.No.120/2022 pending on the file of
the Additional District Court and Special Court for Trial of cases under the E.C.
Act, Coimbatore and Crl.O.P.No.8022/2023 has been filed by A-3 to defreeze his
bank account which has been frozen by the 2nd respondent. Therefore, this Court
passed common order in all these three criminal original petitions.
2. The 2nd respondent registered an FIR in crime No.235/2021 alleging that
on 23.05.2021 at about 11.30 a.m. received a message from a 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.235/2021 for the offences under Sections 8C, 20(b)(ii)(c) and 29(1) of NDPS
Act, 1985.
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3. During the course of investigation, the 2nd respondent recorded the
confession statements of the accused and implicated the petitioners in
Crl.O.P.Nos.21505/2023 and 14144/2023 as A-3 and A-5, respectively. 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.
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.120/2022.
5. Challenging the aforesaid proceedings, these Criminal Original Petitions
have been filed.
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6. The learned counsel for the petitioner submitted that both the petitioners
viz., A-3 and A-5 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, there is no material, muchless, a legal one to connect
the other accused persons with these petitioners in crime No.235/2021. 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 petitioner 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.
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8. The learned Government Advocate (Crl. Side) submitted that there are
totally 15 accused, in which, the petitioners are arrayed as A-3 and A-5. 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.
9. Heard both sides and perused the materials available on record.
10. Admittedly, the petitioners viz., A-3 and A-5 were not named accused in
the FIR registered in crime No.235/2021. While investigation, on the strength of
the confession statement from the co-accused, they have been implicated as A-3
and A-5 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
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confession statement, there was no recovery from A-3 and A-5 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 A-3 and A-5 with other
accused persons. Though A-3’s bank account has been frozen, there is no money
transaction from the other accused persons 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
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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.
13. Further, on a perusal of the statements of the witnesses of hearsay, that
too, stereotype statements as if they heard about A-3 and A-5 from the other
accused persons. Therefore, their statements failed to support the case of
prosecution as against A-3 and A-5. Therefore, the entire case of the prosecution is
foisted as against the petitioners with an ulterior motive to wreak vengeance, since
they have appeared for the accused. 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
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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 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.
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Further, it would reveal that in order to wreak vengeance, a false case has been
foisted against the petitioners and the petitioners does 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
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
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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.120/2022
pending on the file of the Additional District and Special Court for trial of cases
under the E.C. Act, Coimbatore, cannot be sustained as against the petitioners and
accordingly, the same is quashed and in view of the quashment of the entire
proceedings in C.C.No.120/2022 pending on the file of the Additional District and
Special Court for trial of cases under the E.C. Act, Coimbatore, Crl.O.P.No.8022
of 2023 is allowed and the 2nd respondent is directed to defreeze the bank account
No.182501000016431 of the petitioner/A-3 lying with the IOB, District Court
Branch, Erode District/3rd respondent and permit the petitioner/A-3 to operate the
said account.
In the result, these Criminal Original Petitions are allowed. Connected
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Crl.M.P.s are closed.
07.02.2025
gya
To
1.Additional District and Special Court for trial of cases under the E.C. Act
Coimbatore
2.The Manager
IOB, District Court Branch
Erode District
3.The Public Prosecutor
Madras High Court, Chennai
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G.K. ILANTHIRAIYAN, J.
gya
Crl.O.P. Nos.8022, 14144 & 21505 of 2023
07.02.2025
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