Rajasthan High Court

Shri Sanjeev Khokha S/O Shri (Late) R.K. ... vs Union Of India on 19 September, 2024

Author: Sameer Jain

Bench: Sameer Jain

[2024:RJ-JP:37292]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

        S.B. Criminal Miscellaneous (Petition) No. 5721/2024
Shri Sanjeev Khokha S/o Shri (Late) R.K. Khokha, R/o Plot No.
63, First Floor, Udyog Vihar Phase-I, Gurugram, Haryana
                                                                   ----Petitioner
                                    Versus
Union Of India, Through Central Narcotics Bureau (CNB) Office
Of Superintendent (P) Pre And Intl. Cell, Bhawani Mandi, District
Jhalawar-326502.
                                                                 ----Respondent


For Petitioner(s)          :    Mr. Madhav Mitra, Sr. Adv. with
                                Mr. Nitin Bhandari
                                Mr. Sumit Rastogi
                                Ms. Jaya Mitra
For Respondent(s)          :    Mr. Tej Prakash Sharma, Special PP


                HON'BLE MR. JUSTICE SAMEER JAIN
                             Order

REPORTABLE

Reserved On          ::: 04/09/2024

Pronounced On        :::    19/09/2024


1.    The present petition is filed under the provisions of Section

528 of B.N.S.S., 2023 assailing the order dated 06.11.2017

passed by learned Special Judge (NDPS) District and Sessions

Court, Bhawanimandi, Jhalawar in Session Case no. 03/2010.

2.    In a nutshell the factual narrative as averred by the learned

counsel representing the petitioner is that the petitioner being

proprietor of the firm viz. India International Builders (hereinafter

referred to as the firm) was engaged in the business of

construction ever-since the year 1983. On 13.04.1998 the firm of

the petitioner entered into an agreement (Annexure P-3) with M/s

SS Constructions (hereinafter referred to as contractors) whereby,

the petitioner was entrusted with the work of outsourcing job

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works to the contractor upon the site of construction. However,

the petitioner's firm suffered a gargantuan loss and in order to

settle the debts of the contractor, the petitioner entered into a

settlement agreement with the contractor whereby, one car having

registration no. DL-4-CH-1763: Maruti Zen (hereinafter referred to

as the offending vehicle) inter alia several other machineries,

equipment and vehicles was handed over to the contractor in the

year 1998. The said settlement agreement was reduced in writing

on 07.03.2000 (Annexure P-4).

3.    Learned        counsel    representing         the     petitioner   had   fairly

conceded with the fact that since the offending vehicle was under

a hypothecation lease, the same was not transferred to the

contractor and the petitioner had undertaken to provide a NOC to

the contractor upon discharge of the same. The controversy qua

the instant dispute arose when on 11.10.2009 three persons were

arrested with contraband of 1100 gms. of opium from the

offending vehicle. Resultantly, on 14.10.2009 the Central Narcotics

Bureau (hereinafter referred to as CNB) issued notices qua the

petitioner (as the offending vehicle was registered under the

petitioner's name). Sequentially, a criminal case bearing no.

1/2009 was registered against the accused, and learned Special

Judge (NDPS Act) District and Sessions Court, Jhalawar, Rajasthan

ordered conviction to the accused persons by sentencing 5 months

of rigorous imprisonment and a fine of Rs. 10,000/- each.

4.    Consecutively, the CNB on 25.05.2017 filed a supplementary

complaint before the Special Judge (NDPS Act) District and

Session Judge, Bhawanimandi, Rajasthan, ensuing to which the

petitioner was summoned for offences under sections 8/25 of

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NDPS Act, 1985. Nevertheless, the petitioner failed to appear

before    the   concerned      authorities        on     the     prescribed    date;

therefore, vide order dated 06.11.2017 non-bailable warrants

were issued qua the petitioner.

5.    In this backdrop, learned counsel appearing for the petitioner

had placed reliance upon the contents of Annexure P-4 i.e. the

settlement agreement in-between the petitioner and the

contractor and had submitted that the petitioner had already

transferred the offending vehicle to S.S. Construction Company in

the year 2000. Withal, invoking the provisions of section 25 read

with section 35 of NDPS Act, 1985 and taking cognizance qua the

petitioner without any substantial evidence is intrinsically wrong

and violative qua the petitioner's legal rights. It was further

contended that the petitioner was already enlarged on anticipatory

bail considering the vital aspect of transfer of the said vehicle to

latter company. Lastly, learned counsel had urged that in order to

derive a better depiction of the ownership of the offending vehicle

past decade records qua the insurance and other relevant

documents can be procured by the investigating agencies.

6. In support of the contentions made insofar, learned senior

counsel had placed reliance upon the ratio encapsulated in

Criminal Appeal nos. 735-55 of 2009 titled as State of

Punjab vs. Davinder Pal Singh Bhullar & ors., Minu Kumari

and ors. vs. State of Bihar and ors. reported in AIR 2006 SC

1937, Prashant Bharti Vs. State of NCT of Delhi reported in

AIR 2013 SC 2753 and Shaileshbahi Ranchhodbhai Patel &

anr. vs. State of Gujarat in Criminal Appeal no. 1884/2013.

Whilst placing reliance upon the afore-cited dictums learned

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counsel had averred that in order to invoke the provisions of

Section 25 and 35 of the NDPS Act, certain foundational facts

ought to be exhibited by the prosecution to prove their case.

Moreover, the onus to prove the allegations is on the prosecution.

To conclude learned counsel had submitted that the name of the

petitioner was not encompassed in the foremost case filed against

the main accused moreover, the petitioner's name was

subsequently added in the said complaint, which reflects

dubiousness on part of the investigating agencies.

7. Per contra, learned special Public Prosecutor had vehemently

opposed the contentions made by the counsel representing the

petitioner and had submitted that the impugned order was passed

in a case that was registered way back in the year 2010, and till

date apart from the present petition no protest/assailing

application/petition is filed by the petitioner. Therefore, the instant

petition is hit by the principle of delay and laches. It was further

contended that the provisions of section 25 and 35 of the NDPS

Act, draws an inference and presumption against the registered

owner of the conveyance in question. Additionally, a bare perusal

of the provisions of Section 35 of the NDPS Act, unambiguously

clarifies that the malicious/culpable mental state of the accused

shall be presumed by the Court, however, the same is palpably

rebuttable during the trial.

8. Furthermore, it was averred that the petitioner was

summoned before the appropriate authority under section 67 of

the NDPS Act, nevertheless, due to non-compliance of the said

summons, vide order dated 06.11.2017 non-bailable warrants

were issued against the petitioner. At this juncture, learned

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counsel representing the respondent had drawn the attention of

the Court qua the contents of the supplementary complaint filed

by CNB dated 25.05.2017 and had submitted that therein, it is

categorically noted that the official address that was tendered by

the petitioner qua the S.S. Constructions was incorrect and even

after assiduous efforts of the investigating agencies the same

could not be located.

9. Moreover, the registration and subsequent records identifies

the petitioner as the owner of the offending vehicle. To conclude

learned counsel had submitted that the instant petition is filed at a

belated stage, merely to affect and cause delay in the ongoing

proceedings.

10. Upon an assiduous scanning of the record, considering the

aforementioned facts and circumstances of the case, considering

the judgments cited at the Bar and taking note of the arguments

averred by the learned counsel for both the parties, this Court at

this juncture, deems it appropriate to jot down indubitable facts:-

10.1 That resultant to the supplementary complaint dated

25.05.2017, learned Special Judge (NDPS) District and Sessions

Court, Bhawanimandi, Jhalawar vide order dated 06.11.2017

issued non-bailable warrants against the petitioner.

10.2 That the petitioner was enlarged on anticipatory bail

vide order dated 21.08.2023 in S.B. Criminal Miscellaneous Bail

Application no. 2000/2023 by the co-ordinate bench of this Court.

11. Considering the aforementioned observations; juxtaposing

the averments raised by the learned counsel for both the sides

and taking note of the provisions enumerated under the NDPS Act,

[2024:RJ-JP:37292] (6 of 9) [CRLMP-5721/2024]

this Court deems it apposite to dismiss the instant petition for the

reasons noted herein below:

11.1 That in order to invoke the inherent jurisdiction under

Section 528 of B.N.S.S. the High Court has to be copiously

satisfied, that the material produced by the accused is such, that

would lead to the conclusion that his defense is based on sound,

reasonable, and indubitable facts; the material produced is such

as would rule out and displace the assertions contained in the

charges leveled against the accused; and the material produced is

such, as would clearly reject and overrule the veracity of the

allegation contained in the accusations leveled by the prosecution.

It should be sufficient to rule out, reject and discard the

accusations leveled by the prosecution, without necessity of

recording the evidence. For the material relied by the accused

ought not to be refuted by the prosecution. The material relied

upon by the accused should be such, as would persuade a

reasonable person to dismiss and condemn the actual basis of the

accusations as false. Nevertheless, the contentions made herein,

are downright rejected by the prosecution, and this Court is

convinced with the averments made by the learned counsel

representing the respondent.

11.2 That it is a settled position of law that vigilantibus non

dormientibus jura subveniunt meaning, law aids only those who

are vigilant about their rights and not those who sleep over their

rights. In the matter in hand, it is noted that assailing the order

dated 06.11.2017 the petitioner has approached the Court/filed

the present petition in the year 2024. Moreover, no reasonable

[2024:RJ-JP:37292] (7 of 9) [CRLMP-5721/2024]

explanation qua the delay of approximately six years is asserted

by the learned counsel for the petitioner.

11.3 That the provisions of Section 25 and 35 of the NDPS

categorically draw an inference qua the owner of the conveyance

and qua the strict presumption of culpable mental state of the

accused. In the matter in hand, it is inferred that the ownership of

the said offending vehicle is reflected qua the petitioner. For the

sake of convenience the relevant provisions of the NDPS Act are

reproduced herein below:

"25. Punishment for allowing premises, etc., to be used for commission of an offence.--

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.

35. Presumption of culpable mental state (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation- In this section "culpable mental state" includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."

11.4 That the contents of the supplementary complaint

categorically states that during the investigation it was noted that

the petitioner has played indefensible tactics with the investigating

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authorities by tendering wrong addresses qua the subsequent

buyer(s) of the offending vehicle and S.S. Constructions.

Moreover, despite the fact that summons under section 67 of

NDPS were served upon the petitioner, he had on his own accord

omitted to mark presence before the authorities. The relevant

extract of the supplementary complaint dated 25.05.2017 is

reproduced herein below:

"3. izdj.k esa vkxs foospuk djrs gq, vkjkfi;ksa }kjk ifjogu dh tk jgh ek:fr dkj Mh,y 4 lh,p 1763 tsu dkj ds okLrfod ekfyd ds laca/k esa foospuk djus ij ;g rF; lkeus vk;k fd mDr okgu esllZ bf.M;k baVjus"kuy ds uke ls Ø; dh xbZ Fkh ftldk jftLVª"s ku fnukad 11@06@1998 dks djok;k x;k Fkk bl lac/a k esa iwoZ foospuk vkf/kdkjh }kjk foospuk ds nkSjku dk;kZy; eksVj ykblsaflax vf/kdkjh] ifjogu foHkkx] osLV tksu] jktk xkMZu ubZ fnYyh ds }kjk xkM+h dk jftLVª"s ku izek.k i= Hkst dj voxr djk;k x;k gSA foospuk ds nkSjku esllZ bf.M;k baVjus"kuy ds izksijkbZVj latho [kks[kk firk Lo- Jh vkj ds [kks[kk fuoklh@dk;kZy;& 252] laruxj] bZLV vkWQ dSyk"k] ubZ fnYyh us fnukad 01@09@2012 dks vius c;ku esa mDr okgu dks dEiuh ds caVokjs ds nkSjku Jh lqHkk'k pkS/kjh tks dh ,l ,l daLVªD"ku ds ekfyd gS dks o'kZ 1998 esa nsuk crk;k gS fd ;g dkj muds fgLls pyh xbZ Fkh foospuk ds nkSjku tc lqHkk'k pkS/kjh dk irk o dk;kZy; tks fd latho [kks[kk }kjk crk;k x;k Fkk dh rQrh"k dh rks ekywe gqvk fd ftl irs ij dk;kZy; crk;k x;k Fkk ogka og dk;kZy; ugha gSA vkSj ftl irs ij lqHkk'k pkS/kjh dk fuokl crk;k x;k Fkk ogka dksbZ lqHkk'k pkS/kjh ugha jgrs gSaA dk;kZy; o fuokl LFkku dh ekyoh; uxj iqfyl Fkkuk ¼ubZ fnYyh½ o cYyHkx< iqfyl Fkkuk gfj;k.kk dk LVkQ lkFk Fkk ftldk iapukek iwoZ esa Jh c`tikyflag] fujh{kd@foospuk vf/kdkjh }kjk 27@9@2014 dks Jheku dks izLrqr dj fn;k x;k gS tks i=koyh esa "kkfey gSA ftlls Li'V gksrk gS fd latho [kks[kk }kjk foospuk dk;Z dks HkVdkus dk dk;Z fd;k gSA 4- izdj.k dk;e gksus ds mijkar dk;kZy; eksVj ykblsaflax vf/kdkjh] ifjogu foHkkx] osLV tksu] jktk xkMZu] ubZ fnYyh ds }kjk xkM+h

[2024:RJ-JP:37292] (9 of 9) [CRLMP-5721/2024]

jftLVªs"ku izek.k i= ¼tks i=koyh esa "kkfey gS½ Hkstdj Li'V fd;k gS fd xkM+h esllZ bf.M;k baVjus"kuy ds uke gSA esllZ bf.M;k baVjus"kuy ds izksijkbZVj latho [kks[kk firk Lo- Jh vkj ds [kks[kk gS ftUgsa dbZ ckj ,uMhih,l ,DV 1985 dh /kkjk 67 dk leu nsdj dFku ijh{k.k gsrq mifLFkr gksus ds fy, leu tkjh fd;s x, exj og dFku ijh{k.k gsrq vkt fnukad rd mifLFkr ugha gq, gSA latho [kks[kk gh lR;&lR; crk ldrs gS fd mudh dEiuh ds uke jftLVMZ ek:fr tsu dkj ftldk ua Mh,y 4 lh,p 1763 gS dk bLrseky vQhe rLdjh ds ifjogu esa dSls fd;k tk jgk FkkA "

11.5 That the judgments relied upon by the learned counsel

appearing for the petitioner are of distinguishable factual matrix

and this Court is not convinced to rely upon the afore-cited cases.

12. In summation of the aforementioned it can be noted that

considering the provisions of the NDPS Act; that no explanation

qua the delay of six years is tendered by the learned counsel for

the petitioner; that the records reflect the owner of the offending

vehicle to be the petitioner; non-cooperation of the petitioner in

the investigation and trial this Court is not induced to interfere in

the instant matter.

13. Accordingly, the instant petition being devoid of any merit is

dismissed. Pending applications, if any, shall stand disposed of.