Jaisukhlal vs State Of Maharashtra

Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties.

The present application is filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, “BNSS”) for quashing of First Information Report (for short, “FIR”) No.179/2022, dated 21.05.2022, registered with Police Station, Bhadravati, Dist. Chandrapur for the offences punishable under Sections 188, 273 and 328 of the Indian Penal Code, 1860 (for short “IPC”) and Sections 26(2)(i), 26(2)((iv), 27(3)(e), 27(3)(d), 59(ii) and 59 of the Food Safety and Standards Act, 2006 as well as consequent charge-sheet No.146/2023, dated 30.06.2023 registered as Regular Criminal Case No.88/2023, pending before learned Judicial Magistrate, First Class, Bhadravati.

The brief facts of the case are as follows:

(i). The charge-sheet indicates that on 21.05.2022, complainant – API Sudhir Varma, who was working with Police Station, Bhadravati was on patrolling duty in Bhadravati city along with other police staff. At that time SDPO Warora, namely Ayush Sopani called him at Nag Mandir Chowk and informed that he received a secret information that one Vijay Gaikwad – co-accused in the case, will be transporting prohibited contraband scented tobacco to his house by using Maruti Omni car.

After receiving the above information, the complainant called two panchas at Nag Mandir Chowk. The complainant alongwith other police personnel and the panchas devised a plan, thereby, laid a trap near the house of co-accused – Vijay Gaikwad at Suraksha Nagar. At about 14:10 hours, one person came there in a Silver colour Maruti Omni Car bearing registration No.MH34AA3119. As per the information received, the said car stopped in front of co-accused –Vijay Gaikwad’s house. As soon as that person came out of the car, the police personnel tried to catch that person, he ran inside co-accused – Vijay Gaikwad’s house and fled away from the back door of his house.

Thereafter, the police personnel inspected the said car, they found contraband scented tobacco boxes in the car. When, the complainant opened all the boxes and bags he found that it contained prohibited contraband articles of a total amount of Rs.4,12,000/-. The said stock was seized in presence of the panchas by preparing seizure panchanama.

During the course of inquiry, it was revealed that the person who came in Omni car and fled away from the spot was co-accused – Vijay Gaikwad. Accordingly, on the report of the complainant a crime came to be registered against co-accused – Vijay Gaikwad. Thereafter, during interrogation with co-accused – Vijay Gaikwad, he made a confessional statement informing the police that said contraband tobacco was purchased by him from the present applicant. Therefore, the present applicant was arrayed as an accused in the crime. After registration of the crime, the Investigating Officer has recorded the statements of the relevant witnesses and the charge sheet was filed in the Court.

Learned counsel appearing for the applicant submitted that the case of the prosecution is that the complainant, who is a police officer, received secret information. On basis of that secret information, he intercepted the vehicle and the stock was seized. It is further stated that, the prosecution is solely relying on the confession statement made by co-accused – Vijay Gaikwad, which is not the part of the charge-sheet. In the remand papers, it has been stated that co-accused – Vijay Gaikwad had confessed that he purchased the said contraband scented tobacco from the present applicant. Except the statement of the co-accused – Vijay Gaikwad, there is absolutely no material to show that the applicant is the seller/owner of the said stock. According to the learned counsel, statement of co-accused is a weak piece of evidence and cannot be relied in absence of any other cogent material, which is conspicuously absent in the charge-sheet. Therefore, he seeks quashing the FIR against the present applicant.

Per contra, learned APP strongly opposed the contentions putforth by the learned counsel for the applicant by stating that the material seized from co-accused – Vijay Gaikwad is large in quantity. After investigation, the involvement of the present applicant was revealed. Therefore, a prima-facie case is made out against the present applicant. According to him, selling contraband scented tobacco is an offence and the matter requires to go to the trial in order to reach to a proper conclusion. Therefore, in view of this, the application deserves to be rejected.

After considering the submissions of both the parties and on perusal of the investigation papers, it is clear that the vehicle bearing registration No. MH34AA3119 was intercepted on the basis of a secret information and the contraband articles were seized at the instance of co-accused – Vijay Gaikwad. There are allegations that the present applicant is the seller/owner however, except the bare statement of co-accused – Vijay Gaikwad who is the driver of the vehicle, there is absolutely no other material collected during the investigation to show involvement of the present applicant.

Rather, it is stated by the learned APP that on the basis of the statement of co-accused – Vijay Gaikwad, the offence was registered against present applicant. There is nothing on record except the statement of co-accused – Vijay Gaikwad to show that the present applicant is the seller/owner of the said contraband articles.

As per Section 5 of the Indian Evidence Act, 1872 (for short “Act of 1872”) only those facts in issue or facts which are considered relevant under Chapter II of the Act of 1872 would be admissible as evidence. Section(s) 24 to 30 of the Act of 1872, deal with the relevancy and admissibility of ‘confessions’ as evidence.

Section 24 of the Act of 1872 provides when a confession would be relevant by laying down a negative rule of relevancy and prescribing the general parameters as to when a confession would be considered irrelevant. It provides that when a confession is caused by either inducement, threat or promise, it will be irrelevant.

Section 25 of the Act of 1872, goes one step further by providing that, even if such confession is not hit by Section 24 of the Act of 1872 i.e. it is not the result of any inducement, threat or promise, still such confession would be inadmissible if it was made to a police officer. Section 26 and 27 of the Act of 1872, however, carve out an exception to this. Section 26 of the Act of 1872 provides that a confession made by the accused to persons other than police officers would be inadmissible if it was made whilst he was in police custody, unless such confession was made in the presence of a magistrate.

Whereas, Section 27 permits limited use of such statement only to the extent of discovery of a fact pursuant to the disclosure statement which would connect the accused with the crime with the authorship of concealment.

Section(s) 28 and 29 of the Act of 1872 respectively are an exception to the aforesaid general rule of relevancy of confessions. Section 28 of the Act of 1872 provides that if any inducement, threat or promise was made to cause a confession, but such confession was made after the cessation, removal or eradication of such improper influence or impression, then such confession would be relevant. Section 29 of the Act of 1872 on the other hand, expands the test of relevancy by prescribing a positive rule as to when a confession would continue to be relevant and provides that a confession made under one particular type of promise i.e., a promise of secrecy or made as a result of any deception, intoxication or by one’s own volition in response to any question, would not render such confession irrelevant.

Lastly, Section 30 of the Act of 1872, provides that a confession made by a person admitting his own guilt and at the same time implicating another person, may be taken into consideration by the Court against the maker as well as against the person being implicated, if both of them are being tried together.

It is a settled law of criminal jurisprudence that statement of a co-accused cannot be relied upon without any substantive material against other co-accused. The statement of co-accused can only be relied upon to lend assurance. It is only one of the elements for consideration out of all other facts to be proved in a particular case, and therefore, such confession must be supported by other evidence before it is taken into consideration.

In the present case, the prosecution has mainly relied upon the confessional statement of co-accused – Vijay Gaikwad to establish the involvement of the present applicant in commission of the offence i.e. owner of the prohibited contraband articles.

As stated above, for relying on the statement of the co-accused, two conditions must be fulfilled. Firstly, the accused who made the confessional statement should also make an inculpatory statement implicating himself as well as the co-accused against whom the statement is being used. Secondly, the said statement may be used by the Court only as on assurance/corroboration to other available evidence. In the present case, except the statement of co-accused – Vijay Gaikwad, there is no other material whatsoever against the present applicant showing his involvement. That apart, co-accused – Vijay Gaikwad was found transporting the prohibited contraband articles. There is no statement of co-accused – Vijay Gaikwad admitting his guilt. It is only upon enquiry by the police, that co-accused – Vijay Gaikwad stated that the applicant was owner of the said contraband articles. Thus, co-accused – Vijay Gaikwad while making such statement, did not make any inculpatory statement implicating himself in the offence along with the present applicant. Therefore, the said piece of evidence even otherwise cannot be relied upon.

Undisputedly, except the statement of co-accused – Vijay Gaikwad, that the present applicant is the owner/seller of the contraband, there is no other material available on record to show the direct involvement of the applicant in the crime. Even if the material relied upon by the prosecution in the entire charge-sheet against the present applicant is accepted, no conviction can be fastened against the present applicant.

Since, there is no other material against the present applicant, it will be a futile exercise to try him in absence of any other evidence in the crime. Therefore, I find support in the argument of the learned counsel for the present applicant that in any case, the conviction cannot be secured against the present applicant. Therefore, a case is made out for quashing of the FIR and consequent proceedings arising out of the said FIR against the present applicant.

Accordingly, I proceed to pass the following order :

The criminal application is allowed.

First Information Report No.179/2022, dated 21.05.2022, registered with Police Station, Bhadravati, Dist. Chandrapur for the offences punishable under Sections 188, 273 and 328 of the IPC and Sections 26(2)(i), 26(2) ((iv), 27(3)(e), 27(3)(d), 59(ii) and 59 of the Food Safety and Standards Act, 2006 as well as consequent charge-sheet No.146/2023, dated 30.06.2023 registered as Regular Criminal Case No.88/2023, pending before the learned Judicial Magistrate, First Class, Bhadravati, are hereby quashed and set aside qua the applicant only.

The criminal application is disposed of. Rule is made absolute.