ORDER

1. Petitioners have filed this application for invoking the extra ordinary jurisdiction of this Court and to quash the FIR dated 24.8.2018 of Crime No. 561/2018 registered at Police Station-Patharia DistrictDamoh (M.P.) for the offence under sections 34 (2), 44 and 42 of MP Excise Act.

2. The prosecution story, in brief, is that on a tip from the informer to the Police Station- Patharia, 1400 liters of illicit country made liquor was seized from the auto bearing Registration No. MP34R1256. The name of the driver of the auto was Mohan. On being asked he stated that as per instructions of the applicant Govind Bhayal he has gone to one Vishal Lodhi's liquor shop and collected liquor from Amit Thakur, who is the worker of the shop.

3. On behalf of the petitioner, it is submitted that the applicants have been made accused on the memmorandum of the co-accused Mohan who is the driver of the alleged vehicle. The statements of co-accused persons are not admissible. Therefore, applicants seek quashment of FIR.

4. Learned Government Advocate for the respondent/State vehemently opposed the submissions and contended that the illicit liquor has been seized from the co-accused. The petitioners have been named by the coaccused. It is stated by the co-accused that the petitioners had asked them to distribute liquor, therefore, they acted on the direction of the petitioners. The petitioners are liable for having committed offence under section 34 (2) of MP Excise Act.

5. On analyzing the provisions of section 27 of the Evidence Act, it is crystal clear that the evidence of memorandum 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 applicants have conspired or connived with the co-accused person and with an intention have committed the crime, cannot be presumed.

6. In the case of Prakash Singh v. State of MP, 1994 (II) 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 relate to the aforesaid facts but involve other accused are inadmissible under section 27 against the later."

7. Similarly, in the case of Raghu Thakur v. State of MP, 2012(II) MPWN 95=2012 (4) MPHT 116, this Court has held that :

"6. A plain reading of section 27 of Indian Evidence Act indicates that the statement under section 27 of Indian Evidence Act is an exception to the ban imposed upon the Courts to utilize the confessional statement made under sections 25 and 27 of Indian Evidence Act, so as to protect a person making disclosure from being falsely implicated by the police in whose custody that person remains at the time of making disclosure. The provision of section 27 of Indian Evidence Act further indicates that the facts disclosed under section 27 of the Indian Evidence Act can be used only against the person making disclosure and not against any other person."

8. Except for the aforesaid disclosure by the co-accused persons, there is no evidence against the petitioners available on record, which may establish that illicit liquor belonged to the petitioners. It is also not the case of the prosecution that the vehicle in which, illegal liquor was being transported belongs to the petitioners. The memorandum under section 27 of the Evidence Act is confessional statement to the police, which also is hit by section 25 of the Evidence Act and cannot be accepted as legal evidence against the petitio