Criminal Appeal No.1480 of 2011

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 1480 of 2011

(Arising out of S.L.P. (Crl.) No.10543 of 2010)

Harbhajan Singh … Appellant

Versus

State of Haryana … Respondent

J U D G M E N T

Rajesh Bindal, J.

1. The Appellant-Harbhajan Singh was convicted vide

judgment dated 18.05.2005 passed by the Trial Court under

Section 25 of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (hereinafter referred to as “the NDPS Act”) and

sentenced to undergo imprisonment for a period of 10 years.

In appeal, the conviction and sentence of the Appellant was

upheld by the High Court vide order dated 14.05.2010. The

orders are under challenge before this Court.

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Criminal Appeal No.1480 of 2011

2. Briefly, the facts of the case are that the Appellant

was owner of the truck bearing registration no. PAT/2029. It

turned turtle near Hanuman Mandir, Hisar Road, Village Agroha

on 15.05.2000 at 9.00 P.M. First Information Report (FIR) No.68

was registered at 4.25 P.M. on 16.05.2000 on the information

furnished by the police party on patrol duty. As per the

information furnished to the police party by two witnesses Ram

Sarup (PW-6) and Naresh Kumar (PW-10) the accident occurred

on 15.05.2000 at about 9.00 P.M. after the truck hit the divider.

The driver and cleaner came out of the truck and on enquiry by

the said witnesses, they informed their names as Joginder

Singh s/o Jang Singh and Gurmail Singh s/o Nachhattar Singh.

They also disclosed the name of the owner of the truck as

Harbhajan Singh. The driver and the cleaner then went away

on the pretext of calling the owner but never returned. Police,

on suspicion that the bags loaded in the truck were containing

some contraband substance, unloaded them and took them

into custody. Samples were drawn and sent for testing. After

investigation, chargesheet was filed against Joginder Singh,

Gurmail Singh and the Appellant. The Trial Court acquitted

Joginder Singh and Gurmail Singh as two of the witnesses who

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according to prosecution had informed the police party about

the names of the driver and cleaner of the truck were declared

hostile. However, the Appellant who was the registered owner

of the truck was convicted under Section 25 of the NDPS and

the conviction was upheld by the High Court.

3. Brief argument raised by the learned counsel for the

appellant is that Section 25 of the NDPS Act provides that an

owner of the vehicle could be convicted only if he knowingly

permits use of his vehicle for commission of any offence. No

such case was made out by the prosecution. Even the

presumption as provided for in Section 35 of the NDPS Act

cannot be raised as the prosecution had failed to discharge its

initial burden of proving the foundational facts. In the

statement of the Appellant as recorded under Section 313 of

the Criminal Procedure Code, 1973, it was submitted that he

had given the truck on hire to one Kashmir Singh s/o Hoshiyar

Singh resident of Dalel Singhwala for carrying sand. The

Appellant was not arrested from the spot. The driver and

cleaner of the truck have already been acquitted and the State

has not filed any appeal challenging their acquittal. In support

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of his arguments, learned counsel for the Appellant has relied

upon the judgments of this Court in Balwinder Singh v. Asstt.

Commr., Customs and Central Excise

1

, State by Inspector

of Police, Narcotic Intelligence Bureau, Madurai, Tamil

Nadu v. Rajangam

2

, Bhola Singh v. State of Punjab

3

and

Gangadhar alias Gangaram v. State of Madhya Pradesh

4

.

4. On the other hand, learned counsel for the State

submitted that the Appellant has failed to prove its case that

the truck was not being used for any illegal activities. The

owner of the truck is vicariously liable. Though stand was taken

by him that the truck was given for carrying sand however no

such evidence was led by him to prove his plea. Presumption

goes against him.

5. Heard learned counsel for the parties and perused

the relevant referred record.

6. The basic facts of the case as have been noticed

above are not in dispute. The Appellant who is the registered

1 (2005) 4 SCC 146

2 (2010) 15 SCC 369

3 (2011) 11 SCC 653

4 (2020) 9 SCC 202

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Criminal Appeal No.1480 of 2011

owner of the truck was not arrested from the spot. A case was

set up by the prosecution that Joginder Singh and Gurmail

Singh were driver and cleaner of the truck. Even they were not

arrested from the spot. Their identity was established on the

basis of the information furnished to the police party by Ram

Sarup (PW-6) and Naresh Kumar (PW-10). However, when

appeared in Court, they were declared hostile. Joginder Singh

and Gurmail Singh were acquitted. The Appellant is owner of

the truck. He was not arrested from the spot. Section 25 of the

NDPS Act provides that if an owner of a vehicle knowingly

permits it to be used for commission of any offence punishable

under the NDPS Act, he shall be punished accordingly.

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 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.

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Criminal Appeal No.1480 of 2011

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. The High Court has however drawn a

presumption against the appellant under Section 35 of

the Act. This provision is reproduced below:

“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

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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.”

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 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 case cited above, it is apparent that the

initial burden to prove that the appellant had the

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knowledge that the vehicle he owned was being

used for transporting narcotics still lays 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 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 evidences 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 and that the

Appellant had taken the truck on superdari.

Registration of the offending truck cannot by any

stretch of imagination fasten him with the

knowledge of its misuse by the driver and

others.”

(emphasis supplied)

9. On the facts of the case in hand, it is evident that FIR

No.68 dated 16.05.2000 was registered on a complaint by Sub-

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Inspector Ram Mehar (PW-8) who was on a petrol duty when it

was found the truck no. PAT/2029 was lying turtle and bags of

powder scattered. He was informed by two shopkeepers at the

nearby place, namely, Ram Sarup (PW-6) and Naresh Kumar

(PW-10) that the accident occurred at 9 P.M. on 15.05.2000.

After the accident, the driver and the cleaner came out of the

truck cabin and on enquiry by the said witnesses they informed

their names as Joginder Singh s/o Jang Singh and Gurmail Singh

s/o Nachhattar Singh. They claimed themselves to be the driver

and cleaner of the truck. They had gone to inform the owner

of the truck of the said accident but did not return. Having

suspicion that the truck was carrying contraband substances,

both the truck and the contraband items were taken into

possession.

10. Eleven prosecution witnesses were produced. Two

prosecution witnesses namely Ram Sarup (PW-6) and Naresh

Kumar (PW-10) could be said to be relevant for the reason that

in the FIR their names were mentioned as the witnesses who

had informed the police party about the names of the driver

and cleaner of the truck. They denied that any incident had

happened in their presence or they informed anything to the

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police party. Both were declared hostile. They did not even

identify the driver and cleaner of the truck. PW-7 ASI Ram

Sarup was posted at Police Station Agroha along with Sub-

Inspector Ram Mehar (PW-8), who was the author of the FIR.

Besides reiterating what is stated in the FIR in his evidence, he

added that on 19.05.2000 Balwan Singh s/o Chatar Singh,

resident of New Grain Mandi, Barwala stated that Joginder

Singh s/o Jang Singh and Gurmail Singh s/o Nachhattar Singh,

the driver and cleaner of the truck in question stated before

him that they have brought 21 bags of Choorapost along with

powder from Rajasthan on instructions of Harbhajan Singh and

that their truck turned turtle at Agroha. As the police party was

in search of them, they asked that they be produced before the

police. The fact remains that Balwan Singh s/o Chatar Singh

was not produced in evidence. The case sought to be set up by

the prosecution was that the driver and the cleaner of the truck

made extra judicial confession before Balwan Singh s/o Chatar

Singh. Ram Mehar who is the author of the FIR appeared as

PW-8. In his statement also, nothing was stated against the

Appellant. He also referred to the statement of Balwan Singh

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s/o Chatar Singh recorded during investigation, who was not

produced in evidence.

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.

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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.

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.

______________, J.

(Abhay S. Oka)

______________, J.

(Rajesh Bindal)

New Delhi

April 25, 2023

//vj-mb//

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