The Allahabad High Court has said the confession of a co-accused before police is not a valid piece of evidence while allowing a petition.
A Single Bench of Justice Manohar Narayan Mishra passed this order while hearing a criminal revision petition filed by Ajay Kumar Kashyap and other.
The criminal revision has been directed against the impugned order dated 17.10.2024, passed by the Ist Additional Sessions Judge, Ghazipur in Criminal Case under Section 8/21 of NDPS Act, whereby the application 24-B, moved by the revisionists with prayer to discharge them from charge under Section 8/21 of NDPS Act has been dismissed.
The prosecution case is that SO Amit Kumar Pandey, Police Station Jangipur, District Ghazipur accompanied with police team was present on 12.12.2023 at Lava turn trisection where he was informed by SOG Incharge that he had got secret information to the effect that a person had come to purchase some narcotic (illegal heroin) at the culvert on Beso River at Highway and some persons are coming to sell it.
He laid a trap placing reliance on this information and three persons namely, Bagchand Tanwar alias Bhagchand, Rajkamal alias Kamal Sahni and Shivam Pratap Singh riding two motorcycles were intercepted whereas one person succeeded in making good his retreat from the place of arrest of these accused persons.
The arrested persons disclosed the name of absconded persons as Abhay Kashyap, son of Ajay Kashyap. From personal search of arrested accused persons, 250 grams illegal heroin was recovered from each of them and from the search of hand bag carried by Bhagchand, Rs 14 lakh cash was also recovered. One packet containing 250 gms heroin was recovered from spot which was allegedly thrown by the revisionist No 2. Thus, total 1 kg heroin was recovered in the incident.
On interrogation, they stated that Bhagchand come from Rajasthan to purchase the contraband and for that purpose a deal was made from Ajay Kashyap, who has sent his son Abhay Kashyap to sell the contraband, who has escaped from the place of incident by motorcycle. Three persons who had been caught on the spot alongwith cash and contraband recovered in the incident were arrested and on the basis of arrest and recovery memo, a case under Section 8/21 of NDPS Act was registered.
The police recorded statement of arrested accused persons and on the basis of their statement, the complicity of accused Ajay Kumar Kashyap and Abhay Kashyap was also found. Arrested accused persons disclosed that Bhagchand Tanwar had come from Rajasthan to Ghazipur to purchase heroin/smack pursuant to a deal with Ajay Kashyap, who had sent his son Abhay Kashyap and two other arrested accused to supply the heroin for money.
The police submitted the chargesheet against five accused persons after concluding the evidence for said offence. On commencement of trial, an application was moved by the revisionist with prayer to discharge them from the charge on the ground that they have been falsely implicated in the case. Nothing incriminating has been recovered from their possession. They have only been implicated on the basis of confessional statement of co- accused persons, which is not a valid piece of evidence and cannot be used during trial.
However, the trial court citing certain judgements on discharge under Section 227 CrPC concluded that at the stage of framing of charge, the Court is not expected to embark on a mini trial and the court is only to see whether a prima facie case is made out on the basis of material collected during investigation. The police has submitted chargesheet against accused persons alongwith co-accused after investigation finding complicity of the applicants. Therefore, a prima facie case is made out to put up them on trial and no good grounds are made out to discharge the applicants. Accordingly, the application was dismissed.
Counsel for the revisionists submitted that the law is well settled on the basis of provisions of Section 25 and 26 of Evidence Act as well as catena of decisions of the High Courts and Supreme Court that confession of co-accused before police is not a valid piece of evidence that can be used during trial. This is admitted fact that the revisionists were neither arrested on spot nor any contraband was recovered after their surrender before the Court.
Inasmuch as the police had not sought any police custody remand to effect any recovery from them. The only material collected during investigation against the revisionists is the confessional statement of co-accused persons, who were arrested from the spot and from whom recovery of contraband and cash was effected. The revisionists cannot be tried on the basis of confessional statement of co-accused against the revisionists before police.
Even the relevant judicial precedents cited and discussed before court below while releasing the accused on bail were not discussed in impugned order. They are father and son.
Counsel for the revisionists next placed reliance on an order of the Court in Criminal Appeal, Amarjeet Kumar Yadav vs Union of India and Another, whereby the appellant Amarjeet Kumar Yadav was granted bail by the Court by order dated 31.5.2024.
Counsel for the revisionists lastly placed reliance on judgements of Apex Court in cases of Jayendra Saraswathy Swamigal vs State Of Tamil Nadu And Others, AIR 2005 SC 716 and Hari Charan Kurmi and Another vs State of Bihar, 1964 AIR 1184 in support of his contention.
Per contra, AGA submitted that there is no illegality, irregularity or perversity in the impugned order passed by the court below. At the stage of framing of charge, the trial court has only to see as to whether a prima facie case is made out against the accused to put him on trial and for that purpose, there is sufficient material on record. The trial court is not required to embark on a mini trial at the stage of framing of charge.
“Be that it may, the legal position is well settled on the basis of above stated judicial pronouncements and also in view of statutory provisions of Sections 25, 26 and 30 of Evidence Act that the confession of a co-accused before police is not a valid piece of evidence which can be used against accused in a criminal trial. The position of extra judicial confession made before some person other than a police officer will hold different field. Similar is the position with a confession made before a Magistrate and it may also be taken into consideration against a co- accused but in the case, the only material to connect the revisionists with the offence is confession of co-accused recorded by a police officer during police custody and no other evidence could be pointed out by prosecution against the revisionists. Therefore, a case of discharge from charge under Section 8/21 of NDPS Act is made out in the case and the accused revisionists deserve to be discharged from charge under Section 8/21 of NDPS Act,” the Court observed while allowing the petition.
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