Bhola Singh vs State Of Punjab

STATE OF PUNJAB .. RESPONDENT(S)

O R D E R

We have heard the learned counsel for the State.

This appeal by way of special leave arises out of

the following facts:

On 22nd November, 1999 PW.6-Sub-Inspector Manohar

Singh along with other police officials was present on the

bridge over the seepage drain near village Akkanwali. One

Janak Raj, was also along with them. At about 7.00 a.m.

Truck No. RJ-31 G-0859 driven by accused Bansi Lal came

from the side of village Akkanwali. The truck was stopped

on the signal of Sub-Inspector Manohar Singh and on

enquiry the Driver disclosed his name as Bansi Lal son of

Neki Ram, resident of Mira Khan Ki Dhani, Village Maur

Bingar, Police Station, Fatehabad. Three other persons

namely Nirbhai Singh, Gora Singh and Gurmit Singh were

found sitting on the bags which were lying in the body of

the truck. It also came to the notice of the Sub-Inspector

that Gora Singh and Gurmit Singh were the brothers-in-law

of Nirbhai Singh.

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An offer under Section 50 of the Narcotic Drugs and

Psychotropic Substances Act ( hereinafter called the `Act')

was made to the accused. They opted to be searched in the

presence of a Gazetted Officer. DSP Baljit Singh (PW.1) was

then requested to reach the spot. The truck was thereafter

searched and 16 bags of poppy husk each containing 30 kg.

were found in the truck. Samples etc. were taken and sent

to the laboratory for analysis which opined that the

contraband was indeed poppy husk. It also transpired during

the investigation that Bhola Singh, the appellant before

us, was a co-owner of the truck. He along with others was

accordingly charged for an offence punishable under

Section 15 of the Act whereas Bhola Singh and Bansi Lal

were also charged under Section 25 thereof. The Trial

Court on a consideration of the evidence convicted the

accused and sentenced them to undergo 12 years RI each and

a fine of rupees one lakh and in default of payment, RI for

two years.

The matter was thereafter taken in appeal by the

accused. The High Court dismissed the appeal and it is the

admitted case that the SLP filed by the accused other than

the appellant herein has also been dismissed by this Court.

We have gone through the judgment of the Trial Court

and High Court insofar as Bhola Singh is concerned. We

see that he was not present at the spot and the allegation

against him is that he was the co-owner of the truck and

that while purchasing the truck he had given his

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residential address in Rajasthan whereas he was a resident

of Haryana. The High Court has accordingly drawn a

presumption under Section 35 of the Act against him to hold

that by giving a fake address his culpability was writ

large on the facts of the case.

Mr. T.N. Razdan, the learned counsel for the

appellant has raised only one argument before us during the

course of the hearing. He has pointed out that there was no

evidence that the appellant had been involved in the

smuggling of contraband and even if the prosecution story

that he was the co-owner of the truck and had given a wrong

address while purchasing the truck was correct, these

factors could not fasten him with any liability under

Sections 15 and 25 of the Act. He has also submitted that

the "culpable mental state" and the conditions for the

applicability of Section 35 of the Act were not made out.

Mr. Kuldip Singh, the learned counsel for the State

of Punjab, has however supported the judgment of the Trial

Court. We however repeatedly asked the learned counsel as

to whether there was any evidence as to the involvement of

the appellant, other than that he was the co-owner of the

truck and that he had given a wrong address. The learned

counsel fairly stated that there was no other evidence

against the appellant.

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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. 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 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.:

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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 vs. State of

Punjab and Anr. (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 in to play. Applying the facts of the present

case to the cited one, it is apparent that the initial

burden to prove that the appellant had the knowledge that

the vehicle he owned was being used for transporting

Narcotics still lay 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 evidence which the prosecution

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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 while registering the offending

truck cannot by any stretch of imagination fasten him, with

the knowledge of its misuse by the driver and others. We

accordingly allow the appeal, set aside the judgments of

the Courts below and order the appellant's acquittal. His

bail bonds shall stand discharged.

.................J. (HARJIT SINGH BEDI)

....................J. (CHANDRAMAULI KR. PRASAD)

New Delhi, February 8, 2011.

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