Rajasthan High Court - Jodhpur

Kuldeep vs State Of Rajasthan (2025:Rj-Jd:22594) on 7 May, 2025

Author: Farjand Ali

Bench: Farjand Ali

[2025:RJ-JD:22594]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
             S.B. Criminal Revision Petition No. 317/2024

Kuldeep S/o Ved Parkash, Aged About 40 Years, R/o Village
Shergarh, Ps Dabwali, Dist Sirsa, Haryana. (Lodged In Dist Jail
Nagaur, Raj.)
                                                                            ----Petitioner
                                        Versus
State Of Rajasthan, Through Pp
                                                                          ----Respondent


For Petitioner(s)              :    Mr. Moti Singh
For Respondent(s)              :    Mr. Sharvan Singh Rathore Dy.G.A.



                HON'BLE MR. JUSTICE FARJAND ALI

Order

07/05/2025

1. The instant Criminal Revision Petition has a challenge to the

order dated 08.01.2024 passed by the learned Addl. District &

Sessions Judge, Deedwana District Nagaur in Sessions Case

No.17/2016 whereby the learned trial Court passed an order

regarding framing of the charges under Section 8/15 & 29 of the

NDPS Act.

2. I have heard the learned counsel for the parties and gone

through the order under assail and the relevant record.

2.1. It is the case of the prosecution that a vehicle was

intercepted by the police, which was being driven by one Vijaypal.

Certain quantity of opium, which contained in sacks, was

recovered from the truck.

2.1. It is claimed by the prosecution that, when questioned by the

Investigating Officer as to where from he procured the

contraband, accused Vijaypal replied that, under the instructions

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of one Sahadev S/o Amilal, he went to procure the contraband

along with the petitioner, Kuldeep. It is further claimed that

accused Vijaypal and the petitioner went to Chittorgarh, where

they took a room on rent at Sanwaria Lodge during the course of

the transaction. Documents from Sanwaria Lodge were collected

and the statement of the manager was also recorded. However,

the name of the petitioner has not been mentioned anywhere in

the entire record nor in the statement of the hotel manager.

2.2. Precisely, the entire accusation rests upon the alleged

disclosure made by accused Vijaypal to a police officer. The

culpability of both the accused Sahdev and the petitioner solely

depends upon the confession of accused Vijaypal made to a police

officers while in custody. It is relevant to note that accused

Sahadev had challenged the order framing charges by filing a

revision petition being SBCRLR No.1173/2019 which was allowed

by the Coordinate Bench of this Court vide order dated

02.12.2019. The said order is being reproduced hereunder:-

The instant criminal revision has been preferred by the accused-petitioner Sahdev for assailing the order dated 18.01.2018, whereby the learned Additional Sessions Judge, Didwana, District Nagaur ordered framing of charge against the petitioner for the offence under Section 8/15 and in the alternative under Section 8/29 of the NDPS Act; and the order dated 01.08.2019, whereby the charge aforesaid was read over to the accused petitioner.

Mr. D.L. Rawla, learned counsel representing the petitioner, vehemently and fervently urged that the impugned order is absolutely illegal and cannot be sustained. The recovery of the contraband poppy straw

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weighing 36 quintal 95 kg and 300 gm was effected by the SHO, Police Station Maulasar from the truck No.HR- 45-5428, from which the co-accused Vijaypal was apprehended, but one other person managed to make good his escape. When the seizure officer interrogated Vijaypal, he divulged that the person, who had ran away was Kuldeep Vishnoi. Learned counsel for the petitioner pointed out that during further investigation, Vijaypal was interrogated and in his interrogation note, he alleged that Sahdev (the petitioner herein) was the person responsible for loading the contraband poppy straw in the offending vehicle. He urged that the interrogation note of an accused recorded by a police officer is hit by the embargo contained in Sections 25 and 26 of the Evidence Act and cannot be read in evidence for any purpose whatsoever. In addition thereto, his contention was that even if the interrogation note is considered to be a confession, the same cannot be read against the coaccused. He placed reliance on the Single Bench judgment of this court in Chirag Dave Vs. State of Rajasthan Through SHO, P.S. Bicchiwada [2019 (3) CrLR (Raj) 1105] in support of his contentions and urged that the order framing charge dated 18.01.2018 is bad in the eye of law and deserves to be set aside. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced at bar and urged that the charge as against the petitioner has not been framed by the trial court solely on the basis of the interrogation note of the co-accused. During investigation, the Investigating Officer collected evidence to the effect that the accused was escorting the truck No.HR-45-5428 (from which the poppy straw was recovered) by his Bolero vehicle No.RJ-13-C-1618. He, thus, urged that the involvement of the accused in the crime is well-established and the trial court was

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absolutely justified in framing charge against the petitioner as above.

I have given my thoughtful consideration to the submissions advanced at bar and have gone through the impugned order as well as the charge-sheet.

From a threadbare perusal of the statements and documents filed alongwith the charge-sheet, challan papers, it is clear as day light that the accused petitioner was not apprehended with the truck No.HR- 45-5428, in which the contraband poppy straw was being plied. As per the tenor of the trial court's order, the petitioner was found involved in the case as being the person, who was escorting the truck in a Bolero vehicle bearing registration No.RJ-13-C-1618. On a perusal of the charge-sheet, it is clear that no such Bolero vehicle was seized by the Investigating Officer during the course of investigation. There is no material on the entire charge-sheet, which can satisfy the court that the Bolero vehicle actually travelled on the same route as the truck, from which the contraband poppy straw was recovered. The Investigating Officer could have collected the details regarding the transit of the Bolero vehicle from toll booths etc., but he made no effort to procure any such proof. Neither in the entire seizure memo, nor in the statements of the seizure officer Mr. Navneet Vyas or any other member of the police party associated in the search and seizure proceedings; was any utterance made that the truck was being escorted by the aforementioned Bolero vehicle. Thus, the allegation regarding the offending truck having been escorted by the petitioner in the Bolero vehicle No.RJ-13-C-1618 seems to be a pure figment of imagination and a conjectural finding of the Investigating Officer and nothing else. In the entire charge-sheet, there is no such allegation that the truck was escorted by any Bolero vehicle being driven by the

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petitioner in the manner narrated by the trial court in the impugned order. On a careful perusal of the impugned order dated 18.01.2018, it is clear that even the allegation regarding escorting of the truck by the Bolero vehicle No.RJ-13-C-1618 is based on the confession of the co-accused Vijaypal, made by him to the seizure officer Navneet Vyas and his associates as per their 161 CrPC statements. The statement of an accused recorded by a police officer, be it oral or in writing, is clearly inadmissible in evidence as the same would be hit by Sections 25 and 26 of the Indian Evidence Act. Furthermore, even a judicial confession of a coaccused cannot form the basis of initiating a prosecution against another accused in the same case, as has been held by Hon'ble Supreme Court in the case of Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar [AIR 1964 SC 1184]. Such confession can be used to corroborate other evidence, if any available on record. In the case at hand, the situation is entirely different because what the prosecution has chosen to rely upon is the interrogation note/confession of the co- accused made to the police officers, which is inadmissible in evidence for any purpose whatsoever. Thus, there is no legal evidence available on record of the case, which could have formed the basis for framing charge against the petitioner for the offences mentioned above and consequently, the order framing charge dated 18.01.2018 is absolutely illegal and cannot be sustained.

Thus, the revision deserves to be and is hereby allowed. The impugned order dated 18.01.2018, whereby charge was framed against the petitioner for the offence under Section 8/15 and in the alternative under Section 8/29 of the NDPS Act and the order dated 01.08.2019, whereby such charge was read over to him, are hereby quashed and set aside. However,

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the trial of the remaining accused shall continue as per law.

The charges against the accused petitioner and accused

Sahadev are identical, and the facts and circumstances of both

cases also remain the same, therefore, in order to maintain

judicial discipline, consistency, and parity between the orders of

two coordinate Benches, the petition deserves to be allowed.

3. Accordingly, the instant Criminal Revision Petition is allowed.

The order dated 08.01.2024 passed by the learned Addl. Sessions

& District Judge, Deedwana District Nagaur in Sessions Case

No.17/2016 is hereby quashed and set aside. The petitioner is

exonerated from the charges.