Pointing Out A Place Already Known To Police Does Not Amount To 'Discovery' Under Section 27 Of Evidence Act: P&H High Court

The Punjab and Haryana High Court has held that an accused who points out a place the police have already demarcated on a co-accused's information does not bring to light any “fact discovered” within the meaning of Section 27 of the Evidence Act.

Justice Manisha Batra said, “The petitioner pointing out the same place six months later did not bring to light anything which was not already known to the police. Even if this act is treated as conduct under Section 8 of the Evidence Act, it would show no more than the petitioner pointing out a particular spot. It does not show possession or sale of any contraband by him.”

The observation was made while quashing NDPS proceedings against an alleged supplier of Tramadol tablets, including the charge already framed against him. The Court found that apart from his own disclosure statement and the related memos, the only material against him was the confession of a co-accused who had died.

In January 2021, police stopped three young men on a motorcycle and recovered 2,700 Tramadol tablets from them. They allegedly named the petitioner as the supplier, and an FIR was registered under Section 22(c) of the NDPS Act. One of them made a disclosure statement and pointed out the place where the tablets were bought.

The other two were found to be juveniles and were dealt with by the Juvenile Justice Board. The co-accused who made the disclosure later died, and the proceedings against him abated.

After being granted anticipatory bail, the petitioner joined the investigation in July 2021. He allegedly made a disclosure statement admitting the sale, pointed out the place of sale and produced Rs. 1,500 as the balance of the sale proceeds. A charge was framed against him in January 2024, and five of eighteen prosecution witnesses have been examined so far.

What Counts As A 'Fact Discovered'

The Court noted that the petitioner's disclosure was recorded while he was in police custody. To the extent it amounted to a confession, it was barred by Sections 25 and 26. Only the part that “relates distinctly to a fact discovered” could be proved under Section 27.

The Court relied on Pulukuri Kotayya v. King Emperor and on Himachal Pradesh Administration v. Om Prakash, as quoted in State (NCT of Delhi) v. Navjot Sandhu:

“A fact discovered within the meaning of Section 27 must refer to a material fact to which the information directly relates. In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made.”

The Court noted that in Navjot Sandhu, the Supreme Court held that pointing out a shop whose name and address the police already knew was not a discovery under Section 27. There, the accused's conduct was considered under Section 8 only together with the independent testimony of the shopkeeper. The High Court observed: “There is no such independent evidence in the present case.”

The Court held that the cash also failed the test of Section 27, “As regards the sum of Rs.1500/-, it was produced by the petitioner six months after the occurrence. A small sum of currency is not an object connected with the offence, and nothing has been placed on record to identify these notes with the alleged sale.”

It also pointed out that, according to the co-accused's own disclosure, the tablets had been bought on credit. The petitioner's claim to have kept a balance out of the sale price “does not even fit in with the prosecution's own case.”

The Court clarified that it was not weighing the evidence. Its point was only that “the production of this amount does not satisfy the requirement of a 'fact discovered' under Section 27 of the Evidence Act. Once these two circumstances are excluded, nothing remains in the disclosure statement of the petitioner which could be proved against him.”

Confession Of Deceased Co-Accused

The Court held that the co-accused's statement implicating the petitioner was a confession to the police, barred by Sections 25 and 26.

It added that Section 30 could not help the prosecution, “Harpreet Singh son of Manga Singh has died and the proceedings against him have abated, so there is no joint trial in which his confession could be proved.”

Nor could the statement be admitted under Section 32 on account of his death, because a confession to the police “in any case remains hit by Section 25.”

Relying on Haricharan Kurmi v. State of Bihar and Surinder Kumar Khanna v. Intelligence Officer, DRI, the Court reiterated that even where Section 30 applies, a co-accused's confession is not substantive evidence.

The Court also referred to Tofan Singh v. State of Tamil Nadu, In that case, the Supreme Court held that officers invested with powers under Section 53 of the NDPS Act are “police officers” for the purposes of Section 25.

The High Court observed that the statements here were recorded by State police officials, who “are police officers in the plainest sense of the term.” The confessions were therefore “all the more inadmissible.”

Quashing After Charge

Relying on Anand Kumar Mohatta v. State (NCT of Delhi), the Court held that the inherent power under Section 528 BNSS continues to be available after a charge has been framed, though it must then be exercised “with greater circumspection”.

The petitioner's failure to challenge the order framing the charge did not bar the petition, since the question “concerns the legal admissibility of the only material relied upon against him, and it does not call for any appreciation of evidence.”

Following Dipakbhai Jagdishchandra Patel v. State of Gujarat and Karan Talwar v. State of Tamil Nadu, the Court held, “A confession of a co-accused is not sufficient to frame a charge and it is not sufficient to convict either. When the very material on which the charge rests can never be translated into legal evidence, the framing of the charge does not improve its quality.”

The Court rejected the State's reliance on the commercial quantity of the contraband. It said that the rigours of Section 37 of the NDPS Act govern bail and “have no bearing on the question whether any admissible evidence exists against an accused.”

In the light of the above, the plea was allowed.

Mr. P. K. Ganga, Advocate for the petitioner.

Mr. Neeraj Poswal, AAG, Haryana.