Shyamla vs The State Of Madhya Pradesh
2023 Latest Caselaw 13249 MP

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                                         IN THE HIGH COURT OF MADHYA PRADESH
                                                       AT INDORE
                                                             CRA No. 8758 of 2022
                                                   (SHYAMLA Vs THE STATE OF MADHYA PRADESH)

                           Dated : 16-08-2023
                                 Shri Himanshu Thakur, learned counsel for the appellant.

                                 Ms. Aarti Kumawat, learned P.L. for the State.

                                 Heard on I.A. No.15793/2022 which is first application for suspension
                           of sentence and grant of bail filed under section 389(1) of the Cr.P.C. on behalf
                           of appellant-Shyamla.

                                 2. The trial Court has convicted the appellant vide judgment of
                           conviction and order of sentence dated 07.09.2022 in Special Case
                           No.NDPS/700008/2012 passed by the Additional Special Judge, N.D.P.S. Act,
                           Mansaur as under:-
                                              Conviction                                      Sentence

                                                                                               Imprisonment in lieu
                                      Session & Act             Imprisonment      Fine
                                                                                                      of fine

                                8 (C)/15 (B) and 25 of the
                                                                10 years R.I. Rs.1,00,000/-         1 year R.I.
                                      N.D.P.S. Act

                                 3 .     Prosecution story in brief is that on 19/10/2011, the police seized

                           40.65 Quintal poppy straw from truck bearing registration no.RJ-20-GA-0009
                           near Bahiphante highway road P/S Pipaliya Mandi, Distt- Mandsaur and the
                           appellant is registered owner of the aforesaid truck.
                                 4.    Learned counsel for the appellant/accused submits that, the applicant
                           has not committed the offence and has falsely been implicated in the case. It has
                           not been proved that the contraband was transported in the truck with the
                           knowledge of the appellant. Co-accused persons Ramesh Chand, Ajay alias
                           Atul Patidar and Bunty have been acquitted by the learned trial court. The
Signature Not Verified
Signed by: AJIT
KAMALASANAN
Signing time: 17-08-2023
18:42:38
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                           learned trial court has failed to appreciate the statement of prosecution
                           witnesses as well as defence witness. It is further submitted that on 04/10/2011,
                           the appellant had sold (sale agreement Exhibit D-1) the aforesaid truck to
                           accused Pappu. It is also submitted that appellant's 2 major daughter are
                           suffering from physical disability and there is no one to take care of them but
                           the appellant. Therefore, it is prayed that the remaining jail sentence of the
                           appellant may be suspended and he may be released on bail. Reliance has been
                           placed on the judgment of Balvindar Singh V Asstt. Commr., Customs And
                           Central [2005 SCC (Cri.) 1092]; Smt. Anima Prava Roy V State Of
                           Andhra Pradesh [1999 Cri.L.J. 2564] and Balbir Singh V State Of Orissa

                           [1995 Cri.L.J. 1762].
                                 5.    On other hand learned counsel for the respondent/State has objected

the prayer and submits that admittedly the appellant is registered owner of the questioned truck. The truck was not transferred in the name of co-accused Pappu. The appellant Shyamlal (DW/ 1) admitted that he had purchased the truck through financier Shri Ram Transport and on 02/04/2012, the appellant received a notice (Ex.D/ 3) issued by finance company to deposit the EMI. Therefore, his defence that he had sold the truck to co-accused Pappu is after thought. The learned counsel further submitted that as per photographs (Ex.P/ 5 & P/6) it appears that the questioned truck was fully loaded with alleged contraband substance. These circumstances show that without knowledge of the truck's owner, the contraband could not be transported. The contraband substance was in huge quantity. The offence is grave in nature. The learned trial court has properly assessed the evidence adduced by the parties and has rightly convicted and sentenced the appellant. Therefore, application for suspension of sentence is liable to be rejected.

Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 17-08-2023 18:42:38

6 . In the case of Balvindar Singh (Supra) the apex court in paragraph 3 has held as under:-

"3. The present appellant has been found guilty on the ground that he was the registered owner of the vehicle PJA 8677. Counsel for the appellant contends that he purchased this lorry in 1982, along with one Kesar Singh but in 1986 he transferred the vehicle to a third party and the investigating officer, PW 13, who was examined, deposed that during the course of his investigation he came to know that though the present appellant was the original owner of vehicle bearing Registration No. PJA 8677, he had sold the vehicle to one Sucha Singh in 1986, however, the registration was not changed in his name. This appellant was convicted solely for the reason that he was the registered owner of the vehicle PJA 8677, There is no evidence to prove that he knowingly allowed any person to use the vehicle for any illegal purpose. There is also no evidence to prove the conspiracy set up by the prosecution. Therefore, it is clear that though the articles were recovered from the lorry, there is no evidence to show that the appellant had any control over the vehicle nor was he in possession of these drugs. In the result, we allow the appeal and acquit the appellant Balwinder Singh of all charges framed against him."

7. In the case of Smt. Anima Prava Roy (Supra) the apex court in paragraph 7 has held as under:-

"7.The words "knowingly permits" are significant and the offence can be said to have been committed by the owner only if he or she knowingly permitted the vehicle to be used for the said transport. In this case, the only evidence on this aspect for inferring that A6 permitted the vehicle to be used for transporting ganja is said to be the evidence of P.W. 4 that A2 informed him that ganja was transported in the said vehicle with the knowledge of A6. The relevant portion in the evidence of P.W. 4 on this aspect is extracted below:

"A2 informed me that with the knowledge of A6 he was transporting the Ganja in M.O. 20"

As elicited in the cross-examination of this witness, P.W. 4 has not recorded any statement of A2. Thus, there is no statement of A2 on record showing that he informed P.W. 4 about the knowledge or consent of A6 for transporting the contraband material in the car, M.O. 20. The evidence of P.W. 4 attributing the above statement to A2 does not even constitute confession of a co-accused inasmuch as there is no confession of A2 on record. The confession Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 17-08-2023 18:42:38

necessarily implies a self-implicating statement. Mere statement of co-accused implicating another accused and without incriminating himself does not satisfy the requirement of confession of co- accused. At best, the evidence of P.W. 3 that A2 informed him about the incriminating circumstance about A6 amount to hearsay evidence which is not admissible under the Evidence Act. Even if it is treated as confession of co-accused, it cannot be treated as substantive evidence and cannot form basis for conviction. At best it can be used for corroboration of other evidence, if available. Thus, in this case there is scarcely any evidence to satisfy the requirement of Section 25 of the Act that A6 knowingly permitted the use of her vehicle for transporting the contraband material (ganja) in this case."

8. In the case of Balbir Singh (Supra) the apex court in paragraph 4 has held as under:-

"4. Section 25 of the Act provides, inter alia, that whoever being the owner of coveyance knowingly permits it to be used for commission by any other person of an offence under any provision of the Act, shall be punishable with the sentence mentioned therein. The linchpin of the offence under section 25 thus, lies in knowingly permitting use of the vehicle for commission of any offence under the Act. No doubt under section 35 of the Act, the Court shall presume culpable mental state of the accused in any prosecution for an offence under the Act. Similarly, under section 54 of the Act, presumption is available to be raised that the accused has committed an offence under Chapter-IV of the Act. Similar presumption can be raised in case of confiscation of conveyance etc. used in carrying any narcotic drug as provided under section 60(3) of the Act. But in a case under section 25 of the Act. it is for the prosecution to establish that the owner of the vehicle knowingly permitted the vehicle to be used for commission of an offence under the Act. I say so because of the specific mention of the word 'knowingly' by the legislature in section 25 of the Act. The legislature is not expected to use unnecessarily any word or expression. It does not use any word without meaning something. As such, the expression 'knowingly' has to be given due weight.

When the Legislature has employed the word 'knowingly' in Section 25 of the Act, it has to be held that so far as the offence under section 26 is concerned, it is for the prosecution to establish that with the owner's knowledge, the vehicle was used for commission of an offence under the Act and the presumption of culpable mental state referred to in section 36, 54 and 60(3) of the Act cannot be pressed into service by the prosecution. In Raghunath Singh v. State of Madhya Pradesh, 1967 Maharashtra Law Journal 575, the Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 17-08-2023 18:42:38

Supreme Court held that the words 'knowing' or 'knowingly' are used to indicate that knowledge as such must be proved either by positive evidence or circumstantially before mens rea can be established. The words 'knowing' or 'knowingly' are obviously more forceful than the words 'has reason to believe' because they insist on a greater degree of certitude in the mind of the person who is said to know or to do the act knowingly."

I have heard learned counsels for the parties and perused the records.

9. Considering the facts and circumstances of the case, a huge quantity of contraband was seized from the truck of the appellant. Therefore, in view of this court the grounds raised by the appellant for the suspension of the sentence are not convincing. Accordingly, I.A. no. 15793/2022 is rejected.

10. List in due course.

(PRAKASH CHANDRA GUPTA) JUDGE

ajit

Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 17-08-2023 18:42:38