The central legal point established in the judgment is the limited admissibility of statements by co-accused under Section 27 of the Evidence Act and the requirement of legal evidence to prove a charge.

JUDGMENT :

PRAKASH SHRIVASTAVA, J.

1. Heard finally with consent.

2. By this petition under section 482 of the Criminal Procedure Code, the petitioner has challenged the order dated 26-5-2017 framing charge of offence under sections 34(2), 41 and 42 of the M.P. Excise Act passed by the Addl. Chief Judicial Magistrate, Javad as also the order dated 30th July, 2018 passed by the learned Addl. Sessions Judge dismissing the revision petition.

3. Vide order dated 26-5-2017 charge has been framed against the petitioner that on 27-2-2014 about 15:30’o clock the petitioner was found in possession of 423 boxes having more than 50 bulk ltr. of illicit liquor without license, therefore, he had committed the aforesaid offences under the Excise Act.

4. Prosecution story is that on 27-2-2014 on the basis of intimation received from the informant at 3.30 PM, in front of Vikram Mines 523 boxes containing more than 50 bulk ltr. of illicit liquor was seized from the possession of co-accused Azam Ali and Gopal Rawat from the dumper and they had informed that the liquor was ordered by the present petitioner and accordingly the challan was filed and the petitioner has been charged with the aforesaid offence.

5. Learned counsel for petitioner submits that apart from the memorandum of co-accused Azam Ali and Gopal Rawat recorded under section 27 of the Evidence Act, there is no material to connect the present petitioner with the alleged offence.

6. Learned counsel for State apart from referring to the memorandum of co-accused Azam Ali and Gopal Rawat has also submitted that the alleged offence is made out on the basis of the statements of Rustam and Shoukat Ali recorded under section 161 of the Criminal Procedure Code.

7. Having heard the learned counsel for parties and on perusal of the record, it is noticed that there is no material on record to show that the illicit liquor was seized from the possession of the present petitioner or the present petitioner was present on the spot or the present petitioner was the owner of the vehicle from which the liquor was seized. So far as the statements of Rustam and Shoukat Ali recorded under section 161 of the Criminal Procedure Code are concerned, they are in respect of general conduct of the petitioner of transporting the liquor to Semalvada, District Dungarpur, Rajasthan. In their statements it has not been stated that the petitioner was involved in any manner in respect of transportation of the liquor which has been seized in the present case.

8. So far as the implication of the petitioner in the alleged offence on the basis of the statements of co-accused Azam Ali and Gopal recorded under section 27 of the Evidence Act is concerned, this Court in the matter of Bhishma Singh Thakur @ Pappu Doctor vs. State of M.P. 2018 (2) MPWN 4 considering the case in identical fact situation has held as under:-

“5. On analyzing the provisions of Section 27 of the Evidence Act, it is crystal clear that the evidence of memoranda given by the co-accused persons under Section 27 of the Evidence Act to the police can be accepted so far as articles recovered from the accused and for the discovery of the items. Except the above circumstances, no other evidence has been collected in the present case, against the present petitioner. Hence, it is prima-facie indicated that the applicant has conspired or connived with the accused persons and with an intention has committed the crime cannot be presumed.

6. In the case of Prakash Singh vs. State of M.P. 1994 (2) MPWN 72, a coordinate bench of this Court has held that:

“The statement admissible under Section 27 of the Evidence Act are the statements, which could be used as evidence against the maker and not against any other person. Under Section 27 only portions of information given by an accused which are admissible are those which relate distinctly to the facts discovered thereby. Consequently, statements by an accused which do not related to aforesaid facts but involve other accused are in