Rajasthan High Court - Jodhpur

Budharam vs State Of Rajasthan (2024:Rj-Jd:8842) on 20 February, 2024

Author: Dinesh Mehta

Bench: Dinesh Mehta

[2024:RJ-JD:8842]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous II Bail Application No. 1197/2024 Budharam S/o Shri Pemaram, Aged About 60 Years, R/o Bawriyo Ka Vass Kankani, Ps Luni, Dist Jodhpur.

(Lodged In Dist Jail, Chittorgarh)

----Petitioner Versus State Of Rajasthan, Through PP

----Respondent

For Petitioner(s) : Mr. Bhanwar Singh Rathore For Respondent(s) : Mr. Mukhtiyar Khan, PP Mr. Ram Tumer C.I. Police Station Kotwali Nimbaheda, District Chittorgarh

JUSTICE DINESH MEHTA Order

Reportable 20/02/2024

1. This second application for bail has been preferred by the

applicant under Section 439 of the Cr.P.C. in connection with FIR

No.100/2023, registered at Police Station Nimbaheda, District

Chittorgarh for the offences under Sections 8 and 15 of the

Narcotic Drugs and Psychotropic Substances Act, 1985

(hereinafter referred to as 'NDPS Act').

2. The first bail application being (S.B. Criminal Miscellaneous

Bail Application No. 15616/2023) filed on behalf of the applicant

was dismissed as withdrawn on 18.12.2023, with a liberty to file a

fresh after charge-sheet is filed.

3. A charge-sheet has been filed against the applicant

implicating him of the offences under Sections 8/15, 25 and 29 of

the NDPS Act.

4. Mr. Bhanwar Singh, learned counsel for the applicant has

raised two arguments in essence. Firstly, that one Ladu Ram has

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fraudulently got the signatures of present applicant on the

documents and got the vehicle registered in applicant's name and

therefore, the applicant cannot be inculpated for the offences

under Sections 8/25 of the NDPS Act, as he is not an owner of the

vehicle in the eye of law.

5. Secondly, that the Investigating Officer has not collected any

evidence in the form of call details or otherwise to establish that

the truck in question was being used or allowed to be used for

transportation of contraband substance by the present applicant,

who is alleged to be the owner of the vehicle.

6. Learned Public Prosecutor submitted that the argument

advanced by learned counsel for the applicant that he has been

cheated and wrongly made a registered owner of the vehicle is

hardly of any relevance. He added that such plea can be

considered only at the time of trial and not at this stage.

7. Learned Public Prosecutor and Investigating Officer were,

however, not in a position to satisfy the Court as to how and on

the basis of what evidence or material it can be said that the

applicant knowingly permitted the offending vehicle to be used for

the commission of offence and that the mandate of Section 25 of

the NDPS Act is met.

8. Heard learned counsel for the parties and perused the

material available on record.

9. So far as the first argument advanced by learned counsel for

the applicant that the applicant has been deluded by one Ladu

Ram to sign certain papers on the basis whereof the applicant has

been registered as owner of the vehicle in question is concerned,

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the same is an argument to be considered during trial. It can be a

ground of defence of the applicant which can be raised at the time

of recording of his statement under Section 313 of the Cr.P.C. but

at the stage of considering the bail application, the same cannot

be gone into.

10. At this stage, even if the applicant is presumed to be the

registered owner of the vehicle, the Court cannot lose sight of the

fact that the Investigating Officer has not brought on record any

connecting evidence on the basis of which it can be said that the

applicant being registered owner of the vehicle had himself

transported or knowingly permitted the contraband substance to

be transported in his vehicle, thereby attracting provisions of

Section 25 of the NDPS Act.

11. Section 25 of the NDPS Act needs to be looked into in this

regard, which reads thus:-

"Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence. "

12. The use of expression "knowingly permits it to be used for"

implies that, in case a house, room or vehicle etc., has been used

in the commission of offence punishable under the NDPS Act, the

owner by virtue of being an owner in absence of evidence of his

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knowledge or consent; express, implied or tacit, cannot be

indicted for the offence under Section 25 of the NDPS Act.

13. It is to be noted that Section 25 of the Act of 1985 is a sort

of inchoate offence - where the owner, occupier of the house or

conveyance, etc. is held liable for the punishment prescribed for

the offence committed with use of such house or convenyance. It

is to be noted that this provision has been carefully drafted by the

Parliament and it is couched with the expression "knowingly

permits it to be used for the commission of offence". Hence, it is

the duty of Investigating Officer to bring on record material or

evidence to suggest that the vehicle was 'knowingly' permitted to

be used in transportation of contraband substance.

14. This Court is cognizant and conscious of the provision of

Section 35 of the NDPS Act, which provides presumption of

existence of culpable mental state in relation to offences

punishable under the NDPS Act. However, an assumption under

section 25 of the Act of NDPS arises or the presumption can be

drawn only when the investigating agency or the prosecution has

discharged its burden of proof of exhibiting by evidence or

otherwise, that the accused had the knowledge that the vehicle,

room and place, etc., was being used or would be used for

commission of offence punishable under the Act.

15. A gainful reference of a judgment of Hon'ble the Supreme

Court in the case of Balwinder Singh and Ors. Vs. Asstt.

Commissioner, Customs and Central Excise, reported in

(2005) 4 SCC 146, can be made here, in which Hon'ble the

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Supreme Court allowed the accused-appellant's appeal while

observing thus:

Para 3:- The present Appellant has been found guilty on the ground that he was the registered owner of the vehicle P.J.A. 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, P.W. 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. P.J.A. 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 P.J.A. 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.

16. According to this Court, the Police cannot blindly rely upon

Section 35 of the NDPS Act and rope in the owner of the vehicle

for the offence under Section 25 of the NDPS Act on the basis of

statutory presumption. It is the solemn duty of the Investigating

Officer to bring on record cogent material or evidence to discharge

the preliminary burden, in order to invoke statutory presumption -

this presumption cannot be pressed into service or operated in

vacuum.

17. The NDPS Act is a special law, at the core of which is the act

of balancing accused's personal liberty and menace of drugs.

Emphasizing, that the NDPS Act is a special law prescribing stiff

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penalties and harsher rules governing granting of bail, it becomes

even more important for the state to discharge its burden of

proving accused's mental blameworthiness. The provisions of the

NDPS Act though need to be applied strictly, but the same cannot

be done in a way so as to ignore the overarching scheme of

criminal jurisprudence which rests on mental culpability, more

particularly when it comes to the culpability of the owner of the

vehicle who is to be punished for the felony of his driver or the

person driving the vehicle. More so, when the vehicle in question

is a transport/loading vehicle, and not a private vehicle such as

car, jeep, etc., the onus of collecting evidence on the investigating

agency increases.

18. The principal accused persons in their disclosure statements

simply said that two persons had handed them the truck with

instruction to deliver the truck to Shyam Lal, without making any

disclosure about the applicant-the ostensible owner of the truck.

There is no evidence/call details, etc. neither with Hanuman and

Pemaram (who were found with the contraband substance) nor

with Shyamlal the consigner/consignee of the substance.

19. It would be apt to refer to a rather recent judgment dated

25.04.2023, passed by Hon'ble the Supreme Court in the case of

Harbhajan Singh Vs. State of Haryana : Criminal Appeal

No.1480/2011, reported in 2023 SCC online 490.

"7. In the case in hand, the prosecution has failed to produce any material on record to show that the vehicle in question, if was used for any illegal activity, was used with the knowledge and consent of the Appellant. Even presumption as provided for under Section 35 of the NDPS Act will not be available for the reason that the

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prosecution had failed to discharge initial burden on it to prove the foundational facts. In the absence thereof, the onus will not shift on the accused.

8. The issue was considered by this Court in Bhola Singh's case (supra). It was opined that unless the vehicle is used with the knowledge and consent of the owner thereof, which is sine qua non for applicability of Section 25 of the NDPS Act, conviction thereunder cannot be legally sustained. Relevant paragraphs thereof are extracted below:

"8. We have considered the arguments advanced by the learned counsel. We see that Section 25 of the Act would not be applicable in the present case as there is no evidence to indicate that Bhola Singh, the appellant had either knowingly permitted the use of the vehicle for any improper purpose. The sine qua non for the applicability of Section 25 of the Act is thus not made out."

9.******* 10*******

11. The appellant in his statement recorded under Section 313 CrPC denied all the suggestions. In the entire evidence led by the prosecution, no material was produced against the Appellant to discharge initial burden to prove the foundational facts that the offence was committed with the knowledge and consent of the Appellant. It is a case in which he was not with the vehicle nor was he arrested from the spot when the accident occurred or when truck and contraband were taken into custody. He has been convicted merely on the ground that he was the registered owner of the truck. The Trial Court had put entire burden of defence on the Appellant being the registered owner of the vehicle. The Court held that the driver and cleaner of the vehicle being poor will not take risk of smuggling such huge quantity of contraband without the connivance of the owner and it was for the appellant to clear his stand. The judgment of the Trial Court was upheld by the High Court.

12. In the case in hand, the primary error committed by the Courts below while convicting the Appellant is that the onus is sought to be shifted on him to prove his innocence without the foundational facts having been proved by the prosecution. Hence, the conviction of the Appellant cannot be legally sustained.

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13. For the aforementioned reasons, the appeal is allowed. The judgments passed by the Courts below are set aside. The bail bonds of the Appellant stand discharge."

20. This court is also reminded of a judgment passed by a Co-

ordinate Bench of this Court in the case of Puran Ram Vs. State

of Rajasthan, reported in 2019 (4) RLW 2738(Raj.), wherein

the court has observed thus:

From a bare reading of the language of the statutory provision, it is clear that for proving this charge, the prosecution would have to lead evidence to satisfy the court that the owner or the person in control of the offending vehicle used or knowingly permitted the offending vehicle to be used by any other person for commission of an offence punishable under the provisions of the Act. Mere allegation that the contraband was recovered from inside the vehicle would not absolve the prosecution of its burden in this regard. The question of raising presumption under Section 35 of the NDPS Act would only arise once the prosecution discharges the initial burden cast upon it by the penal provision, i.e. Section 25 of the NDPS Act. Having examined the entire evidence of the prosecution, this court is duly satisfied that there is no material whatsoever on the record of the case by which the court can be persuaded to believe that the appellant knowingly permitted or allow the offending vehicle to be used by another person for transportation of the contraband poppy straw. Thus, the ratio of the Supreme Court judgment in the case of Balwinder Singh (supra) relied upon by the learned counsel fully applies to the case at hand and the conviction of the appellant as recorded by the trial court for the above offence cannot be sustained.

21. In view of what has been noticed hereinabove and

considering the law laid down by Hon'ble the Apex Court, this

Court has strong reason to believe that the applicant is neither

involved in conscious transportation and transaction of the

contraband substance nor has he knowingly permitted the vehicle

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to be used for commission of the offence. The mandate of Section

37 of the NDPS Act is, thus, satisfied.

22. Consequently, the bail application filed under Section 439 of

the Cr.P.C. is allowed. The applicant - Budharam S/o Shri

Pemaram arrested in connection with FIR No.100/2023, registered

at Police Station Nimbaheda, District Chittorgarh shall be released