The main legal point established in the judgment is that a confession or statement made by a co-accused under Section 27 of the Evidence Act can only be used against its author and not against any other co-accused. Additionally, there must be a close link between the discovery of a material object and its use in the commission of the offense.

JUDGMENT :

Prakash Shrivastava, J.

Heard through video conferencing.

1. This revision petition under Section 397 read with Section 401 of the Cr.P.C. is directed against the order dated 7.3.2020 passed by the Special Judge (NDPS Act), Mandsaur in S.S.T. No. 09/2020, whereby charge has been framed against the petitioner for commission of offence under Section 8/18, 29 of the NDPS Act.

2. Submission of counsel for the petitioner is that in the Challan no such material is available for framing the charge under the NDPS Act. He submits that the petitioner has been implicated only on the basis of memorandum of co-accused Manish recorded under Section 27 of the Evidence Act and apart from that there is no other material to implicate the petitioner. He submits that no seizure has been made from the petitioner, nor the petitioner is the owner of the vehicle used in transportation of the contraband item.

3. Learned counsel for the State has opposed the petition.

4. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that on 22.8.2019 police had intercepted the co-accused Manish who was going in Motorcycle No. MP14MW8896 and from him the police had seized the contraband item i.e. 3 k.g. of opium. The memorandum of co-accused under Section 27 of the Evidence Act has been recorded on 25.8.2019, wherein he had stated that the contraband item was supplied to him by the present petitioner. On the basis of this statement, the petitioner was arrested and he was granted bail by this Court by order dated 10.12.2019 passed in MCRC No. 48655/2019. Thereafter the trial Court by order dated 7.3.2020 had framed charge against the petitioner for offence under Section 8/18, 29 of the NDPS Act. Counsel for the State has not disputed that apart from the memorandum of co-accused Manish recorded under Section 27 of the Evidence Act, there is no other material to implicate the petitioner in the alleged offence. No seizure or recovery has been made in pursuance to the memorandum recorded under Section 27 of the Evidence Act from the present petitioner.

5. The coordinate Bench of this Court in the matter of Ismail Khan and another Vs. State of M.P. in CRR No. 482/2012 by order dated 30.5.2019 has considered the similar issue and has held that:-

"5. Before proceeding further, I would like to have a glance of the law laid down on the subject by the highest Court of the land or by the several High Court of the country. First we have a look of the concerned provision. For the sake of convenience Section 27 of the Evidence Act is reproduced below:

27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

6. Since pre-independence era, the Courts have consistently taken a view that the disclosure statement of any accused can only be used against its author and not against any other co-accused. First such judgment, which I would like to refer, is authored by justice Burn speaking on behalf of the Division Bench of the Madras High Court in Abdul Basha Sahib Vs. R, AIR 1941 Mad 316 (Before Burn and Lakshmana Rao, JJ.). It was held that where, in a case of murder, the first accused made a confession to the Circle Inspector which led to the discovery of certain jewels of the murdered woman, and also a blood-stained brick which, the first accused stated, the second accused had used to beat her with and in consequence of which she died, the statement of the first accused could not be taken into consideration as against the second accused under section 30 of the Indian Evidence Act. Under section 27 of the Evidence Act the only portions of the information given by the first accused which are admissible are those which relate dist