Madhya Pradesh High Court
Mubarik @ Laadu vs The State Of Madhya Pradesh on 16 April, 2026
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
NEUTRAL CITATION NO. 2026:MPHC-IND:10178
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 16th OF APRIL, 2026
MISC. CRIMINAL CASE No. 52100 of 2025
MUBARIK @ LAADU
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sunil Verma - Advocate for the petitioner.
Shri Bhaskar Agrawal - Govt. Advocate for the respondent/State.
ORDER
Investigation Officer – Shri Mukesh Yadav is present before this
Court. He was at loss to explain the incriminating material against the
petitioner except the information given by the other accused in police
custody. He fairly states that no incriminating material was seized at the
instance of petitioner in furtherance of his information memo dated
04.03.2024.
2. This petition u/s 528 of the Bhartiya NagrikSuraksha Sanhita,
2023(referred to as ‘BNSS, 2023 hereinafter) is filed for quashing of
criminal proceedings in S.C. (NDPS) No. 12/2023 pending before the
Special Judge, NDPS Act, Distt Ratlam
3. The exposition of facts, giving rise to present petition, is as under:
ASI Pradeep Sharma of Police Outpost,Salakhedi intercepted accused
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Malika Khatoon and Afzal Khan on 02.05.2023, who were travelling in bus
bearing registration No. MP 09 FA8951. A transparent plastic bag containing
narcotic contraband- brown sugar(smack)was recovered from the shoulder
bagof Malika Khatoon. On personal search, a transparent plastic bag
containing narcotic contraband brown sugar(smack) was recovered from the
right-side pant pocket of Afzal Khan. Narcotic contraband-brown
sugar(smack)total quantity 250 grams was recovered and jointly seized from
the accused- Malika Khatoon and Afzal Khan. Both the accused were
arrested. They informed that Sayyed Irfan Ali alias Saddam has procured the
narcotic contraband from Mubarik of Badakhedi, Mandsaur and provided to
them. On the basis of information given by the accused Malika and Afzal,
accused Irfan alias Saddam was arrested on 10.05.2024 and Mubarik aliasLaadu(petitioner) was formally arrested on 03.03.2025.The final report was
submitted on completion of investigation.
4. This petition is filed for quashing of criminal proceedings on
following grounds:
(a) The material collected during investigation does not disclose
commission of any offence by the petitioner.
(b) The entire case against the petitioner is predicated solely on the
basis of confessional statement given by the co-accused in police
custody.
(c) The self-incriminating statement given by the petitioner is not
admissible in evidence against the petitioner.
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(d) There exists a profound lack of corroborative evidence,
independent witnesses statement or recovery memo that would justly
implicate the petitioner in the alleged crime.
On these grounds, it is prayed that the impugned FIR alongwith
consequential proceeding be quashed.
5. Learned counsel for the petitioner, in addition to the grounds
mentioned in the petition merely on the basis of information given by the co-
accused Sayed Irfan alias Saddam, Malika and Afzal in custody. No
incriminating material, much less, the narcotic contraband was recovered
from the petitioner.
6. Per contra, learned counsel for the State opposes the on the ground of
gravity of alleged offence. The petition is meritless and deserves to be
dismissed.
7. Heard both the parties, perused the record and the case diary.
8. The Supreme Court in case of State of Haryana & Others vs.Ch.
Bhajan Lal & Others, reported in AIR 1992 SC 604 after an elaborate
consideration of the matter and after referring to various earlier decisions,
has observed, in para 102 as under:-
”102. In the backdrop of the interpretation of the various relevant provisions of the
Code under Chapter XIV and of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of the Code which we have extracted
and reproduced above,we give the following categories of cases by way of
illustration wherein such power could be exercised either to prevent abuse of the
process of any Court or otherwise to secure the ends of justice, though it may not beSignature Not Verified
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possible to lay down any precise, clearly defined and sufficiently channelized and
inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds
of cases wherein such power should be exercised.
(1) Where the allegations made in the First Information Report or the complaint,
even if they are taken at their face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any,
accompanying the F.I.R. do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1)of the Code except under an
order of a Magistrate within the purview of Section 155(2)of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the
evidence collected in support of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but
constitute only a noncognizable offence, no investigation is permitted by a police
officer without an order of a Magistrate as contemplated under Section 155(2) of the
Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code
or the concerned Act (under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide and/or where
the proceeding is maliciously Instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due to private and personal
grudge.”
9. In the case of Madhavrao Jiwajirao Scindia Vs Sambhajirao Chanrojirao
Angrereported in 1988 (1) SCC 692 , the Supreme Court has held as under:
“The legal position is well settled that when a prosecution at the initial stage is
asked to be quashed, the test to be applied by the court is as to whether the
uncontroverted allegations as made prima facie establish the offence. It is also for
the court to take into considerations any special features which appear in a particular
case to consider whether it is expedient and in the interest of justice to permit a
prosecution to continue. This is so on the basis that the Court cannot be utilized for
any oblique purpose and where in the opinion of the Court chances of an ultimateSignature Not Verified
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conviction are bleak and, therefore, no useful purpose is likely to be served by
allowing a criminal prosecution to continue, the Court may while taking into
consideration the special facts of a case also quash the proceeding even though it
may be at a preliminary stage.”
10. The law is now well settled, in a string of judgment right from the pre-
independence era that the information given by the co-accused is
inadmissible, if the same does not lead to any recovery.(Relied-
PullukariKotaya Vs. Emperor, reported in AIR 1947 PC 67, Haricharan
Kurmi and Jogia Hajamreported in AIR 1964 SC 1184, Anter Singh v. State
of Rajasthanreported in (2004) 10 SCC 657, Mustkeem Vs. State of
Rajasthanreported in (2011) 11 SCC 724, State of Maharashtra v. Kamal
Ahmed Mohammed Vakil Ansari reported in (2013) 12 SCC 17, Asar
Mohammad and Ors. Vs. State of U.P. reported in AIR 2018 SC 5264, Kusal
Toppo Vs. State. of Jharkhand reported in 2018 SCC OnLine SC 1563.)
11. In case of Surinder Kumar Khanna v. Directorate of Revenue
Intelligence, reported in (2018) 8 SCC 271, it was observed that-
10. In Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 1952 SC 159 ,
this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. R., 1949
SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155 and laid downas under: (AIR p.
160, paras 8-10
“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 v. R., 1949 SCC OnLine PC 12 : (1948- 49) 76
IA 147 at p. 155.
‘…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.’
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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 that such a confession cannot be made the foundation of a
conviction and can only be used in “support of other evidence”. In view of these
remarks, it would be pointless to cover the same ground, but we feel it is necessary to
expound this further as misapprehension still exists. The question is, in what way can
it be used in support of other evidence? Can it be used to fill in missing gaps? Can it
be used to corroborate an accomplice or, as in the present case, a witness who, though
not an accomplice, is placed in the same category regarding credibility because the
Judge refuses to believe him except insofar as he is corroborated?
9. In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor
v. Lalit Mohan Chuckerbutty [Emperor v. Lalit Mohan Chuckerbutty, ILR (1911) 38
Cal 559 at p. 588.] where he said that such a confession can only be used to “lend
assurance to other evidence against a co-accused “or, to put it in another way, as
Reilly, J. did in PeriaswamiMoopan, In re , 1930 SCC OnLine Mad 86 : ILR (1931)
54 Mad 75 at p. 77. : (SCC OnLine Mad)
‘…the provision goes no further than this–where there is evidence against the
co-accused sufficient, if believed, to support his conviction, then the kind of
confession described in Section 30 may be thrown into the scale as an
additional reason for elieving that evidence.’
10. Translating these observations into concrete terms they come to this. The proper
way to approach a case of this kind is, first, to marshal the evidence against the
accused excluding the confession altogether from consideration and see whether, if it
is believed, a conviction could safely be based on it. If it is capable of belief
independently of the confession, then of course it is not necessary to call the
confession in aid. But cases may arise where the Judge is not prepared to act on the
other evidence as it stands even though, if believed, it would be sufficient to sustain a
conviction. In such an event the Judge may call in aid the confession and use it to
lend assurance to the other evidence and thus fortify himself in believing what
without the aid of the confession he would not be prepared to accept.”
11. The law laid down in Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952
SCR 526 : AIR 1952 SC 159, was approved by a Constitution Bench of this Court
in Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623 at pp. 631-633 : AIR 1964
SC 1184, wherein it was observed:
“12. As we have already indicated, this question has been considered on several
occasions by judicial decisions and it has been consistently held that a
confession cannot be treated as evidence which is substantive evidence against
a co-accused person. In dealing with a criminal case where the prosecution
relies upon the confession of one accused person against another accused
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person, the proper approach to adopt is to consider the other evidence against
such an accused person, and if the said evidence appears to be satisfactory and
the court is inclined to hold that the said evidence may sustain the charge
framed against the said accused person, the court turns to the confession with a
view to assure itself that the conclusion which it is inclined to draw from the
other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor
v. Lalit Mohan Chuckerbutty, ILR (1911) 38 Cal 559 at p. 588. a confession
can only be used to “lend assurance to other evidence against a co-accused”. In
Periaswami Moopan, In re, 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75
at p. 77. Reilly, J., observed that the provision of Section 30 goes not further
than this: (SCC OnLine Mad)
‘…where there is evidence against the co-accused sufficient, if believed, to
support his conviction, then the kind of confession described in Section 30
may be thrown into the scale as an additional reason for believing that
evidence.’
1 2 . Later, in case of Dipakbhai Jagdishchandra Patel v. State of
Gujarat, reported in(2019) 16 SCC 547, it was held that-
24. Undoubtedly, this Court has in Suresh Budharmal Kalani v. State of Maharashtra,
(1998) 7 SCC 337, taken the view that confession by a co-accused containing
incriminating matter against a person would not by itself suffice to framecharge
against it. We may incidentally note that the Court has relied upon the judgment of
this Court in Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952SCR 526 :
AIR 1952 SC 159, We notice that the observations, which have beenrelied upon,
were made in the context of an appeal which arose from the convictionof the
appellant therein after a trial. The same view has been followed undoubtedly in other
cases where the question arose in the context of a conviction and an appeal
therefrom. However, in Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7
SCC 337, the Court has proceeded to take the view that only on the basis of the
statement of the co-accused, no case is made out, even for framing a charge.
30. In Law of Evidence by M. Monir, 17th Edn., p. 555, we notice the following
discussion regarding the distinction between Section 25 on the one hand and Section
26 on the other hand:
“… The section deals with confessions which are made not to Police Officers
but to persons other than Police Officers, e.g., to a fellow prisoner, a doctor or a
visitor, and makes such confessions inadmissible if they were made whilst the
accused was in the custody of a Police Officer. In Section 25 the criterion for
excluding a confession is the answer to the question. “To whom was
theconfession made?” If the answer is that it was made to a Police Officer,
theconfession is absolutely excluded from evidence. On the other hand,
thecriterion adopted in Section 26 for excluding a confession is the answer to
thequestion. “Under what circumstances was the confession made?” If
theanswer is that it was made whilst the accused was in the custody of aSignature Not Verified
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PoliceOfficer, the law lays down that such confession shall be excluded
fromevidence, unless it was made in the immediate presence of a Magistrate.”
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42. A Bench of three learned Judges of this Court in Mahabir Mandal v. State
ofBihar, (1972) 1 SCC 748 : 1972 SCC (Cri) 454 : AIR 1972 SC 1331 , had this to
say:
“46. Coming to the case of Kasim, we find that there is no reliable evidenceas
may show that Kasim was present at the house of Mahabir on the night
ofoccurrence and took part in the disposal of the dead body of Indira.
Reliancewas placed by the prosecution upon the statement alleged to have been
madeby Kasim and Mahadeo accused at the police station in the presence
ofBaijnath PW after Baijnath had lodged report at the police station.
Suchstatements are legally not admissible in evidence and cannot be used
assubstantive evidence. According to Section 162 of the Code of
CriminalProcedure, no statement made by any person to a police officer in the
courseof an investigation shall be signed by the person making it or used for
anypurpose at any enquiry or trial in respect of any offence under
investigationat the time when such statement was made. The only exception to
the aboverule is mentioned in the proviso to that section. According to the
proviso,when any witness is called for the prosecution in the enquiry or trial,
any partof his statement, if duly proved, may be used by the accused and with
thepermission of the court by the prosecution, to contradict such witness in
themanner provided by Section 145 of the Indian Evidence Act and when
anypart of such statement is so used, any part thereof may also be used in the
reexaminationof such witness for the purpose only of explaining any
matterreferred to in his cross-examination. The above rule is, however,
notapplicable to statements falling within the provisions of Clause 1 of
Section32 of the Indian Evidence Act or to affect the provisions of Section 27
of thatAct. It is also well established that the bar of inadmissibility operates
notonly on statements of witnesses but also on those of the accused (see
PakalaNarayana Swami v. King Emperor, 1939 SCC OnLine PC 1 : (1938-39)
66 IA66 : AIR 1939 PC 47] ). Lord Atkin, in that case, while dealing with
Section162 of the Code of Criminal Procedure observed:
‘Then follows the section in question which is drawn in the samegeneral way
relating to “any person”. That the words in their ordinarymeaning would
include any person though he may thereafter beaccused seems plain.
Investigation into crime often includes theexamination of a number or
persons none of whom or all of whommay be suspected at the time. The first words of the sectionprohibiting the
tatement, if recorded, from being signed must apply toall the statements
made at the time and must therefore apply to astatement made by a person
possibly not then even suspected buteventually accused….’
47. Reference may also be made to Section 26 of the Indian Evidence Act,
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according to which no confession made by any person whilst he is in the
custody of a police officer, unless it be made in the immediate presence of a
Magistrate, shall be proved against such person. There is nothing in the present
case to show that the statements which were made by Kasim and Mahadeo
accused on 18-9-1963, at the police station in the presence of Baijnath resulted
in the discovery of any incriminating material as may make them admissible
under Section 27 of the Indian Evidence Act. As such, the aforesaid statements
must be excluded from consideration.” (emphasis supplied)
44. Such a person viz. person who is named in the FIR, and therefore, the accused
inthe eye of the law, can indeed be questioned and the statement is taken by the
police officer. A confession, which is made to a police officer, would be inadmissible
having regard to Section 25 of the Evidence Act. A confession, which is vitiated
under Section 24 of the Evidence Act would also be inadmissible. A confession
unless it fulfils the test laid down in Pakala Narayana Swami and as accepted by this
Court, may still be used as an admission under Section 21 of the Evidence Act. This,
however, is subject to the bar of admissibility of a statement under Section 161 CrPC.
Therefore, even if a statement contains admission, the statement being one under
Section 161, it would immediately attract the bar under Section 162 CrPC.
45. Bar under Section 162 Cr.P.C., no doubt, operates in regard to the statement
made to a police officer in between two points of time viz. from the beginning of the
investigation till the termination of the same. In a case where statement containing
not a confession but admission, which is otherwise relevant and which is made before
the investigation commences, may be admissible. We need not, however, say
anything more.
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5 0 . From the statement of the law contained in CBI v. V.C. Shukla, (1998) 3
SCC410, it becomes clear as to what constitutes confession and how if it does not
constitute confession, it may still be an admission. Being an admission, it may be
admissible under the Evidence Act provided that it meets the requirements of
admission as defined in Section 17 of the Evidence Act. However, even if it is an
admission, if it is made in the course of investigation under the CrPC to a police
officer, then, it will not be admissible under Section 162 CrPC as it clearly prohibits
the use of statement made to a police officer under Section 161 CrPC except for the
purpose which is mentioned therein. Statement given under Section 161, even if
relevant, as it contains an admission, would not be admissible, though an admission
falling short of a confession which may be made otherwise, may become substantive
evidence.
51. A confession made to a police officer is clearly inadmissible. The statement relied
on by the respondent is dated 11-4-1996 and the appellant was arrested on 11-4-
1996.This is pursuant to the FIR registered on 10-4-1996. The statement dated 11-4-
1996is made to a police officer. This is clear from the statement as also the letter
dated 10-8-1996 (Annexure R-6) produced by the respondent. It is clearly during the
course of the investigation. Even if it does contain admissions by virtue of Section
162 and as interpreted by this Court in V.C. Shukla, such admissions are clearly
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inadmissible.
52. If the statement made by the appellant on 11-4-1996 is inadmissible, then, there
will only be the statement of the co-accused available to be considered in deciding
whether the charge has to be framed against the appellant or not. It is here that the
law laid down by this Court in Suresh Budharmal Kalani v. State of Maharashtra ,
(1998) 7 SCC 337 becomes applicable.
13. The material in case diary is examined in light of the aforestated
prepositions of law.
14. The petitioner/accused Mubarik was apprehended on the basis of
information given by main accused Malika and Afzal, who had stated that
Sayed Irfan alias Saddam proposed to provide them brown sugar. Syed Irfan
alias Saddam informed that his acquaintance Mubarik sells brown sugar.
They have paid Rs. 50,000/- through phonepe on Mobile No. 9039468353 of
Syed Irfan alias Saddam. Syed Irfan had brought brown sugar and delivered
to them on 02.05.2023. They used to contact Irfan for purchasing brown
sugar. Accordingly, Syed Irfan alias Saddam was apprehended. Syed Irfan
alias Saddam informed that he has purchased brown sugar from Mubarik for
Rs. 1,30,000/-. In furtherance of this information , the petitioner/accused –
Mubarik alias Laadu was formally arrested on 03.03.2025. But the
Investigation Officer fairly stated that no further recovery could be made in
furtherance of the information given by the co-accused in police custody. No
material indicating communication or financial transaction between the main
accused Malika and Afzal with petitioner Mubarik is available. There is no
incriminating material, such as CDR or money trail, to indicate complicity of
applicant in the alleged offence. It is explicit that the information given or
disclosure made by the accused to the police; which does not lead to any
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recovery, is not admissible in evidence against co-accused and based on such
inadmissible evidence, the prosecution of the petitioner is nothing, but would
be abuse of process of law. The chance of conviction in absence of
admissible incriminating material is bleak, rather the material on record is
not sufficient even to frame charge in view of law laid down in case of
Suresh Budharmal Kalani (supra). Though, the extraordinary powers under
Section 482 has to be used sparingly and cautiously, it would be in the
interest of justice or necessary to achieve the object of the law that no
innocent person shall be allowed to face unnecessary prosecution, if there is
failure to collect incriminating material against him.The continuation of
prosecution against the petitioner would be an abuse of process of law and
wastage of precious time of Court. Therefore, in view of law laid down in
the case of Ch. Bhajan Lal and Madhavrao Jiwajirao Scindia (supra) , this
Court is of the considered opinion that FIR at Crime No. 299/2023 and the
subsequent proceedings deserve to be quashed in exercise of inherent power
u/S 482 of Cr.P.C. so far as it relates to the petitioner/accused – Mubarik
alias Laadu.
15. Consequently, the impugned FIR at Crime No. 299/2023 registered by
the Police Station – Station Road, Distt. Ratlam (M.P.), for offence
punishable under Section(s) 8, 21 and 29 of NDPS Act and the proceedings
in S.C. (NDPS)No.12/2023 pending before the Special Judge (NDPS) Act,
Ratlam, so far as the same relate to the petitioner – Mubarik alias Laadu are
quashed.
16. Petition is disposed off, accordingly.
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(SANJEEV S KALGAONKAR)
JUDGE
sh
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