IMPORTANT POINT
A co-accused's confession cannot solely support a conviction without corroborating evidence, as per the principles of admissibility under the Evidence Act.

ORDER :

Heard.

The petitioner has filed this petition under section 482 of the Code of Criminal Procedure, for quashment of FIR No. 281/2023 registered against the petitioner at Police Station Alot, District Ratlam for commission of offence under section 8/18 and 29 of the NDPS Act.

2. Prosecution story, in brief is that on 11-5-2023, co-accused Vasudev was found having and transporting 07 kgs. of Opium by a motorcycle bearing Registration No. MP-43-DR-1346, without having any licence or authority. The police had seized the aforementioned contraband and motorcycle from the possession of co-accused. Accordingly, an FIR was lodged against him. During investigation, the petitioner was implicated in the case on the basis of memorandum statement given by co-accused Vasudev.

3. Learned counsel for the applicant/accused submits that the applicant has not committed the offence and he has falsely been implicated in the case solely on the basis of memorandum statement recorded under section 27 of the Evidence Act of co-accused Vasudev. It has further been submitted that no evidence is available against him on record. It is also submitted that the petitioner was not present at the time of offence. It is hence submitted that since there is no material whatsoever on record against the petitioner besides the memorandum of co-accused recorded under section 27 of the Evidence Act, which is not admissible in evidence and no recovery pursuant to the same has been made, the proceedings against the petitioner deserves to be quashed. Learned counsel has placed reliance on the case passed by Coordinate Bench of this Court in Ramniwas vs. State of M. P., MCRC No. 51243/2023; Shafi Kha vs. State of M. P., MCRC No. 52563/2023 and Kamal Singh Sondhiya vs. State of M. P., MCRC No. 19934/2023.

4. Per contra, learned counsel for the respondent/State has vehemently opposed the prayer of the petitioner and prayed for dismissal of this petition.

5. I have heard learned counsel for the parties and perused the case diary.

6. In the case of Ramniwas (supra), the Coordinate Bench of this Court has held as under :—

“7. Recently, this Court in the case of Dilip Kumar vs. State of M. P., M.Cr.C. No. 2748/2022 decided on 12-4-2022 has held in paragraph No. 15 to 18 as under :—

“15. A close scrutiny of the charge-sheet reveals that apart from the aforesaid memo and the bank statement of Dangi brothers, there is no other material available on record to suggest that the present petitioner Deelep had also facilitated the sale of fake fertilizer which was prepared by Suresh Dangi and other accused persons. There is also no evidence available on record to suggest that the present petitioner Deelep obtained from Suresh Dangi any amount over and above the requisite amount of the sale of gypsum granules to him, which can be said to be connected with the sale of fake fertilizer.

16. Regarding admissibility of the confessional statement given by a co-accused and of the petitioner, a reference may be had to the decision rendered by the Supreme Court, authored by Vivian Bose, J. in the case of Kashmira Singh vs. State of M. P. (supra), the relevant paras 8, 9, 10 and 11 of the same read, as under :

“8. Gurubachan’s confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu vs. King. “It does not indeed come within the definition of “evidence” contained in section 3 of the Evidence Act., It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination.”

Their Lordships also point out that it is

“obviously evidence of a very weak type … It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities.” They stated in addition tha