1

IN THE HIGH COURT OF MADHYA PRADESH

AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
MISC. CRIMINAL CASE No. 9308 of 2020

BETWEEN:-
BHARAT SINGH S/O SAJJAN SINGH,
AGED ABOUT 27 YEARS,
R/O: VILLAGE AAKLI, TEHSIL MANASA,
DISTRICT NEEMUCH (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAGHAV SHRIVASTAVA - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH
THROUGH P.S. MANASA,
DISTRICT NEEMUCH (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI GOVIND PUROHIT – GOVERNMENT ADVOCATE)
Reserved on: 13th OF SEPTEMBER, 2022
Pronounced on: 12th OF DECEMBER, 2022
This petition having been heard and reserved for orders, coming on
for pronouncement this day, the Court pronounced the following:

ORDER

1/ This petition under section 482 of the Code of Criminal

Procedure, 1908 (in short Cr.P.C.) is preferred by petitioner for
quashment of FIR bearing Crime No. 131/2017 dated 7.4.2017 for
 2

offence under section 8, 18 and 29 of Narcotic Drugs and Psychotropic

Substances Act, 1985 (in short “NDPS Act”) registered at police station
Manasa, District Neemuch and all other consequential proceedings
arising out of therefrom.

2/ Facts of the case in brief are that on 7.4.2017 ASI Mr. R.S.
Sisodiya, Police Station Manasa District Neemuch received a discreet
information from the informer that co-accused Pappu is coming from
Anakali with some illegal opium in white colour plastic bag and going
to Dewari Khaskhavasa via Aankalimgra by raw way to near Bajrang
Bali Temple situated at Dewari Khawasa Road. Acting upon said
information, police party reached on the spot and took position, after
sometime according to the information received from the informer, the
police party saw a person coming from a raw way as a pedestrian. He
was intercepted and during search, 15 kg 400 gm opium has been
recovered from co-accused Pappu and during investigation co-accused
Pappu in his memorandum statement given under section 27 of Indian
Evidence Act disclosed that alleged contraband was procured by theft
with the help of present petitioner and other co-accused persons. The
present petitioner has been implicated as an accused. Accordingly FIR
bearing crime No. 131/2017 under section 8, 18 and 29 of NDPS Act
has been registered and after due investigation charge sheet has been
filed.
 3

3/ Learned counsel for the petitioner submits that petitioner

has been implicated in this offence only on the basis of memorandum of
co-accused under section 27 of Indian Evidence Act and apart from that,
there is no material to implicate the present applicant in this offence,
because neither his name was mentioned in the FIR nor any seizure has
been made from him, therefore, prima facie no offence is made out
against him. Independent witness of the information,memo, section 42
and 50, seizure memo and other panchanamas Ramchandra (PW-1) and
Manaklal (PW-2) have turned hostile and other witnesses have not
supported the prosecution case and therefore, there is no possibility of
conviction of present petitioner. The continuation of criminal
proceeding would result into failure of justice and misuse of judicial
mechanism. Hence he prays that FIR bearing crime No. 131/2017 under
section 8, 18 and 29 of NDPS Act registered at police station Manasa
District Neemuch be quashed. He also submits that in identical
circumstances, coordinate bench of this Court had allowed CRR
No.6181/2018 by order dated 31.10.2019. He also placed reliance upon
following judgments of Hon’ble Apex court:-
1/ Pulukuri Kottaya and others Vs. Emperor
(1947 0 AIR(PC) 67)
2/ Asar Mohammand and ors. Vs. The State of U.P.
(2018 0 Supreme(SC) 1075)
3/ Kusal Toppo and Anr. Vs. State of Jharkhand
 4

(2018 0 Supreme(SC) 1047)

4/ Per contra, learned counsel for respondent/State opposes the

prayer and prays for its rejection.
5/ I have heard learned counsel for both the parties and
perused the case diary and other documents filed by both the parties.
6/ Before proceeding further, it would be trite to have look at
the law. For the sake of convenience, section 27 of Indian 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.”

7/ Before adverting the rival contentions of the parties, it will

be useful to reiterate the law law down by Hon'ble Apex Court on the
jurisdictional issues, firstly scope of jurisdiction of this Court under
section 482 of Cr.P.C, in the matter of quashment of criminal
proceedings; secondly, meaning concept and dimension of mischief as
defined in section 429 of IPC.
 5

8/ In the case of Zandu Pharmaceutical Works Ltd., &

others Vs. Mohd. Sharaful Haque & Another, AIR 2005 SC 9, the
Hon'ble Supreme Court has observed as under:-

“It would be an abuse of process of the court to allow any

action which would result in injustice and prevent promotion of
justice. In exercise of the powers, court would be justified to
quash any proceeding if it finds that intimation/continuance of
it amounts to abuse of the process of court or quashing of these
proceedings would otherwise serve the ends of justice. When no
offence is disclosed by the complaint, the court may examine
the question of fact. When a complaint is sought to be quashed,
it is permissible to look into the materials to assess what the
complainant has alleged and whether any offence is made out
even if the allegations are accepted in toto.”

9/ Similar view has been reiterated by the Hon'ble Supreme

Court in Devendra and Others Vs. State of Uttar Pradesh and
Another (2009) 7 SCC 495:

“There is no dispute with regard to the aforementioned

propositions of law. However, it is now well-settled that the
High Court ordinarily would exercise its jurisdiction under
Section 482 of the Code of Criminal Procedure if the
allegations made in the First Information Report, even if given
face value and taken to be correct in their entirety, do not
make out any offence. When the allegations made in the First
Information Report or the evidences collected during
investigation do not satisfy the ingredients of an offence, the
superior courts would not encourage harassment of a person in
a criminal court for nothing.”
 6

10/ In the instant case it is true that present applicant Bharat

Singh has been implicated in this offence on the basis of memorandum
statement under Section 27 of the Evidence Act given by co-accused
person and nothing has been recovered from his possession. The
coordinate Bench of this Court in the case of Afzal Vs. State of M.P.
passed in CRR No.6181/2018 vide order dated 31.10.2019 has held that
the information given or disclosure made by the co-accused to the
police, which does not lead to any recovery, is not admissible in
evidence against co-accused and on the basis of such inadmissible
evidence, the prosecution of the petitioner cannot be continued and the
FIR registered against the petitioner and all other consequential
proceedings pending against the petitioner deserves to be quashed.

11/ In the case of Tofan Singh Vs. State of Tamil Nadu

reported in 2021(4) SCC 1 it has been held by the Hon’ble Apex Court
that confessional statement recorded under Section 67 of the NDPS Act
will remain inadmissible in the trial for an offence under the NDPS Act.
But recently the Hon’ble Apex Court in the case of The State of
Haryana Vs. Samarth Kumar reported in 2022 LiveLaw (SC) 622
has held as under:-

“8. In cases of this nature, the respondents may be

able to take advantage of the decision in Tofan Singh Vs.
State of Tamil Nadu (supra), perhaps at the time of arguing
the regular bail application or at the time of final hearing
after conclusion of the trial.”
 7

12/ Therefore, in the light of the law laid down by the Hon’ble
Apex Court in the case of Samarth Kumar (supra), it is clear that
respondent may be able to take advantage of the decision in Tofan
Singh (supra) case only at the stage of arguing the regular bail
application or at the time of final hearing after conclusion of the trial.
The first stage arguing on regular bail has been already over and second
stage has not yet come. Now on the basis of the aforesaid judgment,
petitioner can take advantage of Tofan Singh (supra) case at the time of
final hearing after conclusion of the whole evidence in the trial.
Therefore, it is clear that interference under Section 482 of Cr.P.C. is
not warranted at this stage.

13/ Consequently this petition under Section 482 of Cr.P.C. is

hereby dismissed.

14/ Let a copy of this order be sent to the trial Court for
necessary information.

C.C. as per rules.

(ANIL VERMA)
JUDGE
Trilok/-

Digitally signed by TRILOK SINGH

SAVNER
Date: 2022.12.13 14:05:52 +05'30'