Confession of a co-accused cannot serve as substantive evidence against another co-accused; absence of other evidence entitles the accused to benefit of doubt.

ORDER :

This Criminal Original Petition has been filed to quash the proceedings in C.C.No.155/2022 on the file of the Additional District and Special Court for trial of cases under the E.C. Act, Coimbatore, for the offences under Sections 8(c) r/w20(b)(ii)(B) and 29(1) of the NDPS Act, 1985.

2. The case of the prosecution is that on 01.06.2021 at about 12.30 p.m., while the 1^st respondent is involved in vehicle checkup near Kumarasamy Hospital, Periyar Nagar, Erode, some unknown persons, on seeing the police jeep, attempted to escape. On enquiry, the 1^st respondent seized 120 gms. of contraband from A-8. Thereafter, after recording their confession, seized 2 kgs. of ganja from them. Thereafter, registered an FIR in crime No.320/2021 for the offences under Sections 8C, 20(b)(ii)(B) and 29(1) of NDPS Act, 1985. NDPS Act, 1985.

3. After completion of investigation, filed a final report against the14 accused persons 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.155 of 2022, in which, the petitioner is arrayed as A-4. The petitioner/A-4 has been implicated on the strength of the confession statement of the co-accused. Except the confession statement of the co-accused, there is no other material to suggest the petitioner/A-4's participation in the offence. That apart, on the basis of the confession statement of the co-accused, there was no recovery from the petitioner. Further, no one has spoken about the overt act of the petitioner to contact the other accused persons.

4. Now, the petitioner is charged for the offence under punishable Sections Sections 8C, 20(b)(ii)(B) and 29(1) of NDPS Act, 1985. On a perusal of the confession statement of the co-accused revealed that A-1 and A-3 conspired with the petitioner/A-4 for procuring the contraband from Andhra Pradesh and distributed amongst the accused. Admittedly, the petitioner being an Advocate appeared for other accused persons in several cases. Therefore, except the confession statement of the co-accused, there is no material as against the petitioner to attract any of the charges.

5. Challenging the aforesaid proceedings, this Criminal Original Petition has been filed.

6. The learned counsel for the petitioner submitted that both the petitioner was 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 petitioner to attract any of the charges as alleged by the prosecution. On the strength of the confession statement of co-accused, the 1^st respondent has filed a final report. The petitioner conspired with other accused persons, procured contraband and sell it. Therefore, there is no material, muchless, a legal one to connect the other accused persons with the petitioner/A-4 in crime No.320/2021.

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.

8. The learned Government Advocate (Crl. Side) submitted that there are totally 14 accused, in which, the petitioner is arrayed as A-4. Though the petitioner was implicated as accused on the basis of the confession statement of the co-accused, there are incriminating materials as against the petitioner