Page No.# 1/3 vs The State Of Assam
2025 Latest Caselaw 846 Gua

Gauhati High Court

Page No.# 1/3 vs The State Of Assam on 4 June, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                           Page No.# 1/3

GAHC010065162025




                                                                    2025:GAU-AS:7271

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                   Case No. : AB/733/2025

             BRAJ KISHORE
             S/O- RAM CHANDRA, R/O- NAGLA KHAGI,
             KHEDA HELU, BASREHAR ETAWAR, UTTAR PRADESH, PIN-206253



             VERSUS

             THE STATE OF ASSAM
             REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR SISHIR DUTTA, MS S MOCHAHARI,MR. S DUTTA,MR S
DUTTA

Advocate for the Respondent : PP, ASSAM,




                                      :: BEFORE ::
                   HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                       O R D E R

04.06.2025

Heard Mr. S. Dutta, the learned counsel appearing for the petitioner. Also heard Mr. Bhaskar Sarma, the learned Addl. Public Prosecutor, Assam.

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2. This is an application under Section 482 of the BNSS, 2023 praying for pre-arrest bail in respect of Special (NDPS) Case No.127/2024 corresponding to Bazaricherra P.S. Case No.197/2024 (G.R. Case No.2162/2024) pending in the court of the Addl. Sessions Judge, Sribhumi.

3. A truck bearing Registration No.UP-75-AT-4207 was found carrying 294 cartons of Codein Phosphate & Triprolidire Hydrochloride Syrup ESkuf Cough Syrup. In total, 44,100 bottles of cough syrups were seized. The petitioner being the registered owner of the said truck, has been apprehending that he might be arrested by police in that case.

4. The petitioner has admitted that he is the registered owner of the said vehicle/truck. According to the petitioner, on the basis of an agreement dated 06.01.2024, he had given the said vehicle to Binod Kumar on monthly rent of ₹80,000/- and this Binod Kumar has been doing business by using the said vehicle.

5. Mr. Dutta has submitted that the petitioner was never in possession of any narcotic drugs. He had already handed over the truck to Binod Kumar. Mr. Dutta has relied upon the judgment of the Hon'ble Supreme Court that was delivered in Bhola Singh v. State of Punjab, (2011) 11 SCC 653. Paragraphs 10 and 11 of the said judgment are quoted as under:

"10. While dealing with the question of possession in terms of Section 54 of the Act and the presumption raised under Section 35, this Court in Noor Aga v. State of Punjab [(2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] while upholding the constitutional validity of Section 35 observed that as this section imposed a heavy reverse burden on an accused, the condition for the applicability of this and other related sections would have to be spelt out on facts and it was only after the prosecution had discharged the initial burden to prove the foundational facts that Section 35 would come into play.

11. Applying the facts of the present case to the cited one, it is apparent that the initial burden to prove that the appellant had the knowledge that the vehicle he owned was being used for transporting narcotics still lay on the prosecution, as would be clear from the word "knowingly", and it was only after the evidence proved beyond reasonable doubt that he had the knowledge would the presumption under Section 35 arise. Section 35 also presupposes that the culpable mental state of an accused has to Page No.# 3/3

be proved as a fact beyond reasonable doubt and not merely when its existence is established by a preponderance of probabilities. We are of the opinion that in the absence of any evidence with regard to the mental state of the appellant no presumption under Section 35 can be drawn. The only evidence which the prosecution seeks to rely on is the appellant's conduct in giving his residential address in Rajasthan although he was a resident of Fatehabad in Haryana while registering the offending truck cannot by any stretch of imagination fasten him with the knowledge of its misuse by the driver and others."

6. Mr. Dutta has submitted that the petitioner being the registered owner is the only incriminating factor in this case. But he did not knowingly allow Binod Kumar to carry contraband goods in his vehicle.

7. It may be stated that the contraband goods were found amongst large amount of bags containing onions. That means, the carrier concealed the contraband goods amongst the bags of onions.

8. After considering the submissions made by the learned counsel of both sides, this Court has decided to agree with Mr. Dutta that there are scanty elements against the present petitioner to justify his detention in custody. Therefore, his pre-arrest bail is allowed.

9. It is hereby directed that in the event of arrest in connection with Special (NDPS) Case No.127/2024 corresponding to Bazaricherra P.S. Case No.197/2024 (G.R. Case No.2162/2024) pending in the court of the learned Addl. Sessions Judge, Sribhumi, petitioner Braj Kishore shall be released on bail of ₹30,000/- with a surety of like amount to the satisfaction of the said court i.e. learned Addl. Sessions Judge, Sribhumi.

The bail application is disposed of.

JUDGE

Comparing Assistant