Smt. Anima Prava Roy (A6) vs State of A.P.

Vaman Rao, J.—This appeal is directed against the judgment dated 6.5.1993 in C.C. No. 6 of 1993 on the file of the Additional District Judge-cum-Special Judge, Vizianagaram in which the Appellant/A6 along with five Ors. have been convicted for the offences u/s 25 in the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act�) and the Appellant is sentenced to rigorous imprisonment for 19 years and to pay a fine of Rs. 1 lakh and in default of payment of fine to undergo rigorous imprisonment for two years. While A1 to A5 were convicted for the offence u/s 8(c) read with Section 20(b)(1) of the N.D.P.S. Act and sentenced to five years rigorous imprisonment.

The facts relating to this appeal may be stated briefly as follows :

�The Assistant Excise Superintendent, Vizianagaram (P.W. 2) received information on the intervening night of 14/15.1.1993 at about 4 a.m. that ganja was being transported in a car. He informed P.W. 4, the Excise Inspector, Bobbili and both of them along with P.W. 1 and P.W. 3., Excise Sub-Inspectors proceeded and intercepted the car after chasing, when it did not stop even after signalling to stop, near the petrol bunk junction at Bobbili. Then, A1 is said to have got down from the car and started running away and he was chased and caught. Later, the Excise Sub-Inspector opened the dicky of the car and found two gunny bags. On opening the said bags, four packets of ganja in each bag were found.P.W. 1 seized those packets, took samples out of them. A2 was said to be the driver of the car and A3 was found sitting on the front seat while A4 and A5 were found sitting in the back seat of the car. Nos. 9 and 10 are the said gunny bags and Nos. 11 to 18 are the samples said to have been taken.P.W. 4 prepared the occurrence report, Ex. P1 and effected the arrest of Al to A5 who also attested the said report Ex. P1.

P.W. 1 seized the R.C. book of the vehicle, Ex. P2. It was registered in the name of A6. The driving licence of A2, Ex, P3, was also seized. The five accused were taken to excise station, Bobbili where P.W. 1 registered a case in Crime No. 10/92-93. Thereafter, P.W. 4, the Excise Inspector, investigated into the offence. During investigation, it was revealed that A6 was the owner of the car and that the illicit material like Ganja was transported with the knowledge and consent of A6. On this ground, A6 was added as an accused.

In support of this case, P.Ws. 1 to 4 have evidence on the above lines. Exs. P1 to P8 and Memos 1 to 20 have been marked besides Exs. C1 to C3 and Exs. X1 and X2 have also been marked. On behalf of the accused, D.W. 1 has been examined. Ex. D1 being a contradiction in the statement of P.W. 3 was also marked.

In this appeal, obviously it is the conviction of A6, which is challenged.

The only evidence on the basis of which A6 seems to have been convicted by the learned Special Judge is that as seen from RC Book, Ex. P2, A6 was recorded as the owner of the vehicle involved in the offence. In fact, it is not disputed on behalf of A6 that she was the owner of the said vehicle. The other piece of evidence, which comes to have been relied upon is the alleged statement of A2 made to P.W. 4 that A6 had given her consent for the vehicle in question being used for the purpose of transporting illicit drugs like ganja. A6 is charged for the offence u/s 25 of the Act. Section 25 of the Act is extracted below for ready reference :

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 rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakhs.

From this provision, it is apparent that mere ownership of vehicle which was found to have been used for transporting contraband material like ganja in itself is not an offence. The essential requisite for constituting the offence u/s 25 of the Act is that the owner of a vehicle or the person having control of a vehicle has knowingly permitted it to be used for commission of any offence punishable under the Act. By proving mere use of the vehicle for transporting contraband material like ganja, the offence u/s 25 of the Act cannot be fastened to the owner�the vehicle. This has been so held by the Supreme Court in Balbir Singh Vs. State of Orissa, .

The words �knowingly permits� are significant and the offence can be said to have been committed by the owner only if he or she knowingly permitted the vehicle to be used for the said transport. In this case, the only evidence on this aspect for inferring that A6 permitted the vehicle to be used for transporting ganja is said to be the evidence of P.W. 4 that A2 informed him that ganja was transported in the said vehicle with the knowledge of A6. The relevant portion in the evidence of P.W. 4 on this aspect is extracted below :

A2 informed me that with the knowledge of A6 he was transporting the ganja in M.O. 20.

As elicited in the cross-examination of this witness, P.W. 4 has not recorded any statement of A2. Thus, there is no statement of A2 on record showing that he informed P.W. 4 about the knowledge or consent of A6 for transporting the contraband material in the car, M.O. 20. The evidence of P.W. 4 attributing the above statement to A2 does not even constitute confession of a co-accused inasmuch as there is no confession of A2 on record. The confession necessarily implies a self-implicating statement. Mere statement of co-accused implicating Anr. accused and without incriminating himself does not satisfy the requirement of confession or Co-accused. At best, the evidence of P.W. 4 that A2 informed him about the incriminating circumstance about A6 amounts to hearsay evidence which is not admissible under the Evidence Act. Even if it is treated as confession of co-accused, it cannot be treated as substantive evidence and cannot form basis for conviction. At best, it can be used for corroboration of other evidence if available. Thus, in this case, there is scarcely any evidence to satisfy the requirement of Section 25 of the Act that A6 knowingly permitted the use of her vehicle for transporting the contraband material (ganja.) in this case.

In the result, it has to be held that the prosecution woefully failed to bring home the charge against A6 for the offence u/s 25 of the N.D.P.S. Act. Hence, the appeal is allowed and the conviction and sentence passed by the trial Court against the Appellant herein (Accused No. 6) is set aside. Her bail bonds shall stand discharged. If the fine amount has been paid, it shall be refunded.

It is obvious that subject to any other action which may be initiated or taken by the concerned authorities and subject to any orders passed by the competent authority, if any, under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, regarding confiscation of the vehicle, M.O. 20, the order of confiscation order passed by the learned Sessions Judge in C.C. No. 6 of 1993 must also be deemed to have been set aside inasmuch as the conviction has been set-aside.