Rajasthan High Court - Jodhpur
Suresh Kumar vs State Of Rajasthan (2024:Rj-Jd:36170) on 2 September, 2024
[2024:RJ-JD:36170]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 8597/2022
Suresh Kumar S/o Chogaram, Aged About 30 Years, R/o Vill.
Khozas, Teh. Deedwana Dist. Nagour.
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Pankaj Kumar Gupta
For Respondent(s) : Mr. Vikram Rajpurohit, PP
with Mr. R.S. Bhati
HON'BLE MR. JUSTICE ARUN MONGA
Order (Oral)
02/09/2024
1. Quashing of a charge-sheet No.193/2021 dated 22.12.2021
arising out of FIR No.288/2021 dated 01.11.2021, registered at
P.S. Ladnu, District Nagaur, for the offences under Sections 16 and
19/54-A of the Rajasthan Excise Act qua the petitioner is sought
herein. The petitioner has also challenged the order dated
23.12.2021, passed by the learned Additional Chief Judicial
Magistrate, Ladnu, Nagaur by which cognizance of the offence
under Section 19/54-A of the Rajasthan Excise Act has been taken
against the petitioner. The petitioner has assailed another order
dated 20.10.2022 passed by the learned Additional Chief Judicial
Magistrate, Ladnu, Nagaur, vide which application filed under
Section 451 Cr.P.C. for supardari has been dismissed.
2. The relevant facts as pleaded in the petition are that on
31.10.2021, police party, during the routine patrolling, on secret
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information reached at the residence of one Alam Khan where
three persons, namely, Dharam Singh, Mahaveer Tholia and
Babulal were found and heavy quantity of illegal liquor was also
stored at the premises. It is stated that the police party also
recovered a vehicle Bolero Camper, which was parked in the area,
having no number plate. The same was seized during
investigation.
2.1. After investigation, charge-sheet for the offences under
Section 19/54-A of the Rajasthan Excise Act was filed inter alia
against the petitioner. Thereafter, the learned trial court took
cognizance of the offence under Section 19/54-A of the Rajasthan
Excise Act against the petitioner vide order dated 23.12.2021.
2.2. During the trial, the petitioner, being owner, also filed an
application under Section 451 Cr.P.C. for releasing the alleged
offending vehicle, which was dismissed vide order dated
22.10.2022. Hence, this petition.
3. In the aforesaid backdrop, I have heard learned counsel for
the petitioner and the learned Public Prosecutor and perused the
case file.
4. The sum and substance of the arguments canvassed by the
learned counsel for the petitioner is that other than custodial
statements of the co-accused, whereby they implicated the
petitioner merely on the ground that he is the owner of the Bolero
Camper vehicle, which was intended to be used for transportation
of the illicit liquor, seized by the police officials, there is nothing on
record to array him as an accused.
5. He would further argue that other than the custodial
statements, there is not an iota of evidence discovered by the
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police officials in course of interrogation. He relies on a judgment
of this Court rendered in the case of Pappu Singh Vs. State of
Rajasthan & Anr. [2022(4) Cr.L.R. (Raj.) 1761] to contend
that the custodial statements alone cannot be the basis of
arraying the petitioner as the accused without any independent
corroborating evidence to implicate him in the matter.
6. Per contra, learned Public Prosecutor would contest the
aforesaid contentions of the learned counsel for the petitioner and
seeks dismissal of the petition. He submits that it is incorrect to
suggest that there is no other corroborating evidence. He argues
that the illicit liquor was seized while it was still loaded in the
offending vehicle, i.e. Bolero Camper. Therefore, being the owner
of the vehicle, since no satisfactory explanation has come-forth
from the petitioner in course of interrogation as to why his vehicle
was used, he has rightly been arrayed as an accused.
7. Having perused the case file and after hearing the rival
contentions, I am of the view that the contention of the learned
Public Prosecutor is factually incorrect. The same flies in the face
of the contents of the FIR, which is the very first statement and
has to be taken nearest to the truth to ascertain whether the illicit
liquor was recovered from the vehicle or from an alternative place.
It is nowhere stated in the FIR that the vehicle in question was
seized at the time of search and the illicit liquor was loaded in the
said vehicle. It transpires that subsequently, in course of
interrogation, it was so found that the Bolero Camper vehicle was
since parked near the premises, which was searched and coupled
with the statement that the Bolero Camper vehicle was intended
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to be used for transportation of the said liquor, the petitioner has
been implicated being the owner of the said vehicle.
8. What thus transpires is as below:-
(i) The only piece of evidence against the petitioner is
concededly the custodial statement of co-accused.
(ii) Other than the aforesaid statement, there is no
corroborating evidence of any kind so as to suggest the
culpability of the petitioner.
(iii) The petitioner was not apprehended at the time of search
conducted by the police officials.
(iv) The illicit liquor was seized from the premises of Alam Khan,
as per the contents of the FIR and not from the vehicle.
(v) The vehicle in question was also not seized at the time of
search but was subsequently impounded on the statement of
co-accused.
9. To sum up, neither the vehicle in question was used in
carrying the illicit liquor nor is there any evidence of any kind
against the petitioner to implicate in the FIR. Reference in this
context may be had to Section 25 of the Evidence Act, 1872,
which states as under:-
"25. Confession to police-officer not to be proved.- No
confession made to a police-officer, shall be proved as against
a person accused of any offence."
10. Section 25 of the Indian Evidence Act, 1872, thus clearly
states that confessions made to police officers cannot be used
against an accused. Since the only evidence is the custodial
statement of the co-accused, which is inadmissible in court, the
charge-sheet against the petitioner lacks any legally acceptable
evidence. Resultantly, the trite law being that the custodial
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statement of a co-accused cannot be the sole basis to substantiate
any evidence against another accused and in the absence of any
corroborating evidence either averred or direct or indirect, the
petitioner deserves benefit thereof. Given that the custodial
statements are the only evidence, applying the principle of "falsus
in uno, falsus in omnibus" (false in one thing, false in everything), the
unreliability of custodial statements calls into question the entire
foundation of the case against the petitioner.
11. Moreover, the prosecution of the petitioner based solely on
the custodial statements of co-accused without any independent
or corroborative evidence violates the petitioner's right to a fair
trial. Article 21 of the Indian Constitution guarantees the right to
life and personal liberty, which includes the right to a fair trial. The
absence of corroborative evidence means the case against the
petitioner lacks the necessary legal and factual basis. Confessions
made to police officers being inadmissible, such statements cannot
thus form the basis of prosecution.
12. Furthermore, the petitioner was not present at the scene
when the illegal liquor was seized. The vehicle was merely parked
near the premises of another individual (Alam Khan), and there is
no direct evidence showing the petitioner's involvement in the
transportation or intended use of the vehicle for transporting illicit
liquor. Merely being the owner of the vehicle does not establish
that the petitioner had possession or control over the illegal liquor.
Ownership alone is insufficient to establish guilt under the
Rajasthan Excise Act, which requires active participation or
knowledge.
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13. In the premise, the continuation of proceedings against the
petitioner, based solely on weak and inadmissible evidence,
amounts to an abuse of the process of law. The legal system
should not be used to harass individuals without sufficient
evidence to substantiate the charges.
14. As an upshot, the FIR qua the petitioner is quashed with
consequences to follow including the charge-sheet dated
22.12.2021 filed to the extent of implicating the petitioner as well
as the order dated 23.12.2021 by which cognizance of the alleged
offences has been taken against the petitioner. The vehicle in
question is also ordered to be released on supardari on usual
terms to be determined by the learned trial court.
15. Pending application(s), if any, shall also stand disposed of.
(ARUN MONGA),J
2-skm/-
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