HARBHAJAN SINGH versus STATE OF HARYANA on 25 April 2023

1. The Appellant-Harbhajan Singh was convicted vide judgmentdated 18.05.2005 passed by the Trial Court under Section 25 of theFNarcotic Drugs and Psychotropic Substances Act, 1985 (hereinafterreferred to as “the NDPS Act”) and sentenced to undergo imprisonmentfor a period of 10 years. In appeal, the conviction and sentence of theAppellant was upheld by the High Court vide order dated 14.05.2010.The orders are under challenge before this Court.

2. Briefly, the facts of the case are that the Appellant was ownerGof the truck bearing registration no. PAT/2029. It turned turtle nearHanuman Mandir, Hisar Road, Village Agroha on 15.05.2000 at 9.00P.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 patrolduty. As per the information furnished to the police party by two witnessesHRam 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. Thedriver and cleaner came out of the truck and on enquiry by the saidwitnesses, they informed their names as Joginder Singh s/o Jang Singhand Gurmail Singh s/o Nachhattar Singh. They also disclosed the nameof the owner of the truck as Harbhajan Singh. The driver and the cleanerthen went away on the pretext of calling the owner but never returned.Police, on suspicion that the bags loaded in the truck were containingsome contraband substance, unloaded them and took them into custody.Samples were drawn and sent for testing. After investigation, chargesheetwas filed against Joginder Singh, Gurmail Singh and the Appellant. TheTrial Court acquitted Joginder Singh and Gurmail Singh as two of thewitnesses who according to prosecution had informed the police partyabout the names of the driver and cleaner of the truck were declaredhostile. However, the Appellant who was the registered owner of thetruck was convicted under Section 25 of the NDPS and the convictionwas upheld by the High Court.

3. Brief argument raised by the learned counsel for the appellantis that Section 25 of the NDPS Act provides that an owner of the vehiclecould be convicted only if he knowingly permits use of his vehicle forcommission of any offence. No such case was made out by theprosecution. Even the presumption as provided for in Section 35 of theNDPS Act cannot be raised as the prosecution had failed to dischargeits initial burden of proving the foundational facts. In the statement ofthe Appellant as recorded under Section 313 of the Criminal ProcedureCode, 1973, it was submitted that he had given the truck on hire to oneKashmir Singh s/o Hoshiyar Singh resident of Dalel Singhwala forcarrying sand. The Appellant was not arrested from the spot. The driverand cleaner of the truck have already been acquitted and the State hasnot filed any appeal challenging their acquittal. In support of his arguments,learned counsel for the Appellant has relied upon the judgments of thisCourt in Balwinder Singh v. Asstt. Commr., Customs and CentralExcise[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].

1 (2005) 4 SCC 146

2 (2010) 15 SCC 369

3 (2011) 11 SCC 653

4 (2020) 9 SCC 202

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A4. On the other hand, learned counsel for the State submitted thatthe Appellant has failed to prove its case that the truck was not beingused for any illegal activities. The owner of the truck is vicariously liable.Though stand was taken by him that the truck was given for carryingsand however no such evidence was led by him to prove his plea.Presumption goes against him.B5. Heard learned counsel for the parties and perused the relevantreferred record.

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6. The basic facts of the case as have been noticed above are notin dispute. The Appellant who is the registered owner of the truck wasCnot arrested from the spot. A case was set up by the prosecution thatJoginder Singh and Gurmail Singh were driver and cleaner of the truck.Even they were not arrested from the spot. Their identity was establishedon the basis of the information furnished to the police party by RamSarup (PW-6) and Naresh Kumar (PW-10). However, when appearedin Court, they were declared hostile. Joginder Singh and Gurmail SinghDwere acquitted. The Appellant is owner of the truck. He was not arrestedfrom the spot. Section 25 of the NDPS Act provides that if an owner ofa vehicle knowingly permits it to be used for commission of any offencepunishable under the NDPS Act, he shall be punished accordingly.

7. In the case in hand, the prosecution has failed to produce anyEmaterial on record to show that the vehicle in question, if was used forany illegal activity, was used with the knowledge and consent of theAppellant. Even presumption as provided for under Section 35 of theNDPS Act will not be available for the reason that the prosecution hadfailed to discharge initial burden on it to prove the foundational facts. InFthe 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 knowledgeand consent of the owner thereof, which is sine qua non for applicabilityof Section 25 of the NDPS Act, conviction thereunder cannot be legallyGsustained. Relevant paragraphs thereof are extracted below:

“8. We have considered the arguments advanced by thelearned counsel. We see that Section 25 of the Act would notbe applicable in the present case as there is no evidence toindicate that Bhola Singh, the appellant had either knowinglypermitted the use of the vehicle for any improper purpose.H

The sine qua non for the applicability of Section 25 of theAct is thus not made out.

9. The High Court has however drawn a presumptionagainst the appellant under Section 35 of the Act. Thisprovision is reproduced below:

“35.Presumption of culpable mental state.—(1) In anyprosecution for an offence under this Act, which requiresa culpable mental state of the accused, the court shallpresume the existence of such mental state but it shall be adefence for the accused to prove the fact that he had nosuch mental state with respect to the act charged as anoffence in that prosecution.

Explanation.—In this section ‘culpable mental state’includes intention, motive, knowledge of a fact and beliefin, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to beproved only when the court believes it to exist beyond areasonable doubt and not merely when its existence isestablished by a preponderance of probability.”

10. While dealing with the question of possession in termsof Section 54 of the Act and the presumption raised underSection 35, this Court in Noor Aga v. State of Punjab (2008)16 SCC 417 while upholding the constitutional validity ofSection 35 observed that as this section imposed a heavyreverse burden on an accused, the condition for theapplicability of this and other related sections would have tobe spelt out on facts and it was only after the prosecutionhad discharged the initial burden to prove the foundationalfacts that Section 35 would come into play.

11. Applying the facts of the present case to the case citedabove, it is apparent that the initial burden to prove that theappellant had the knowledge that the vehicle he owned wasbeing used for transporting narcotics still lays on theprosecution, as would be clear from the word “knowingly”,and it was only after the evidence proved beyond reasonabledoubt that he had the knowledge would the presumption underSection 35 arise. Section 35 also presupposes that theculpable mental state of an accused has to be proved as a A

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SUPREME COURT REPORTS

Afact beyond reasonable doubt and not merely when itsexistence is established by a preponderance of probabilities.We are of the opinion that in the absence of any evidencewith regard to the mental state of the appellant no presumptionunder Section 35 can be drawn.The only evidences whichthe prosecution seeks to rely on is the Appellant’s conduct inBgiving his residential address in Rajasthan although he wasa resident of Fatehabad in Haryana and that the Appellanthad taken the truck on superdari. Registration of the offendingtruck cannot by any stretch of imagination fasten him withthe knowledge of its misuse by the driver and others.”

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(emphasis supplied)

9. On the facts of the case in hand, it is evident that FIR No.68dated 16.05.2000 was registered on a complaint by Sub-Inspector RamMehar (PW-8) who was on a petrol duty when it was found the truckno. PAT/2029 was lying turtle and bags of powder scattered. He wasDinformed by two shopkeepers at the nearby place, namely, Ram Sarup(PW-6) and Naresh Kumar (PW-10) that the accident occurred at 9P.M. on 15.05.2000. After the accident, the driver and the cleaner cameout of the truck cabin and on enquiry by the said witnesses they informedtheir names as Joginder Singh s/o Jang Singh and Gurmail Singh s/oENachhattar Singh. They claimed themselves to be the driver and cleanerof the truck. They had gone to inform the owner of the truck of the saidaccident but did not return. Having suspicion that the truck was carryingcontraband substances, both the truck and the contraband items weretaken into possession.

F10. Eleven prosecution witnesses were produced. Two prosecutionwitnesses namely Ram Sarup (PW-6) and Naresh Kumar (PW-10) couldbe said to be relevant for the reason that in the FIR their names werementioned as the witnesses who had informed the police party about thenames of the driver and cleaner of the truck. They denied that anyincident had happened in their presence or they informed anything to theGpolice party. Both were declared hostile. They did not even identify thedriver and cleaner of the truck. PW-7 ASI Ram Sarup was posted atPolice Station Agroha along with Sub-Inspector Ram Mehar (PW-8),who was the author of the FIR. Besides reiterating what is stated in theFIR in his evidence, he added that on 19.05.2000 Balwan Singh s/oChatar Singh, resident of New Grain Mandi, Barwala stated that JoginderH

Singh s/o Jang Singh and Gurmail Singh s/o Nachhattar Singh, the driverand cleaner of the truck in question stated before him that they havebrought 21 bags of Choorapost along with powder from Rajasthan oninstructions of Harbhajan Singh and that their truck turned turtle atAgroha. As the police party was in search of them, they asked that theybe produced before the police. The fact remains that Balwan Singh s/oChatar Singh was not produced in evidence. The case sought to be setup by the prosecution was that the driver and the cleaner of the truckmade extra judicial confession before Balwan Singh s/o Chatar Singh.Ram Mehar who is the author of the FIR appeared as PW-8. In hisstatement also, nothing was stated against the Appellant. He also referredto the statement of Balwan Singh s/o Chatar Singh recorded duringinvestigation, who was not produced in evidence.

11. The appellant in his statement recorded under Section 313CrPC denied all the suggestions. In the entire evidence led by theprosecution, no material was produced against the Appellant to dischargeinitial burden to prove the foundational facts that the offence wascommitted with the knowledge and consent of the Appellant. It is a casein which he was not with the vehicle nor was he arrested from the spotwhen the accident occurred or when truck and contraband were takeninto custody. He has been convicted merely on the ground that he wasthe registered owner of the truck. The Trial Court had put entire burdenof defence on the Appellant being the registered owner of the vehicle.The Court held that the driver and cleaner of the vehicle being poor willnot take risk of smuggling such huge quantity of contraband without theconnivance 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 Courtsbelow while convicting the Appellant is that the onus is sought to beshifted on him to prove his innocence without the foundational factshaving been proved by the prosecution. Hence, the conviction of theAppellant cannot be legally sustained.

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

Nidhi Jain

Appeal allowed.

(Assisted by : Mayank Batra and Rakhi, LCRAs)

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