Vinod Kumar Sharma vs State of Rajasthan

Prashant Kumar Agarwal, J.—The accused-petitioner has filed this third application for grant of bail under Section 439 Cr.P.C. in respect of FIR No. 53/2014 registered at Police Station Manoharpur (District Jaipur) for the offence under Section 8 /15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as "the Act"). The first application filed by the petitioner for grant of bail was dismissed by this Court as withdrawn vide order dated 5.12.2014 with liberty to file fresh application after framing of charge. The second application moved by the petitioner was dismissed on merit by this Court vide order dated 23.1.2015 after charge for the offence under Section 8 /25 of the Act was framed against the petitioner by the trial Court and for dismissing that application Sections 25 , 35 and 37 of the Act were taken into consideration by this Court. The present application has been filed after statements of three prosecution witnesses have been recorded by the trial Court. It is to be noted that the petitioner is the registered owner of the vehicle which was found to be carrying narcotic drug without any valid licence or permit and, therefore, against him charge under Section 8 /25 of the Act has been framed.

It was submitted by the learned counsel for the petitioner that the petitioner has been involved in the case merely because he happens to be registered owner of the vehicle allegedly found to be carrying the contraband, but during the course of investigation and even during trial none of the prosecution witnesses so far examined has stated that the petitioner as a registered owner of the vehicle knowingly permitted the co-accused to use his vehicle to carry any contraband article and, therefore, the petitioner could not have involved in the case and he is entitled to be released on bail more particularly looking to the period of his custody. It was further submitted that although under Section 35 of the Act there is presumption of culpable mental state on the part of a person accused of an offence under the provisions of the Act but it is well settled legal position that initial burden is on the prosecution to prove the required culpable mental state of the accused and in the present case also it was for the prosecution to show that the petitioner knowingly permitted his vehicle to be used for carrying contraband article. It was also submitted that the petitioner was arrested without there being any evidence regarding his aforesaid culpable mental state and thereafter a notice under Section 133 of the Motor Vehicle Act was given to him by the investigating officer on 9.9.2014, but in the notice also it was not mentioned that the petitioner knowingly allowed his vehicle to be used for transportation of contraband. It was submitted that it was the duty of the investigating officer to seek explanation from the petitioner in what circumstances his vehicle has been found to carry contraband article but without doing so he was arrested without there being any evidence.

In support of his submissions, learned counsel for the petitioner relied upon the cases of Bhola Singh Vs. State of Punjab, and Balwinder Singh and Another Vs. Asstt. Commissioner, Customs and Central Excise, .

On the other hand, it was submitted by the learned Public Prosecutor that it is an admitted fact that the petitioner is registered owner of the vehicle in question and, therefore, presumption under Section 35 of the Act is to be raised against him to the effect that he knowingly permitted his vehicle to be used for transportation of recovered contraband. It was further submitted that as per Section 35 of the Act the burden of proof is upon the accused to rebut the aforesaid presumption on the basis of evidence produced during the course of trial but in the present case till date no such evidence has come on record from which it can be said that the petitioner has been able to discharge his burden.

I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the evidence collected during investigation and the statements of prosecution witnesses so far recorded during trial and also the relevant legal provisions and the case law.

Section 25 of the Act provides that 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 the Act, shall be punishable with the punishment provided for that offence. It is thus clear that as per this provision the owner of a vehicle is liable to be punished for an offence under the Act if he knowingly permits his vehicle to be used for the commission of an offence by any other person. According to this provision even if the owner of the vehicle himself has not committed the offence, but it is found that in the commission of such offence his vehicle was involved in any manner and it is further found that he knowingly permitted his vehicle to be used for the commission of such offence, he is liable to be punished in the same manner as the person who has actually committed the offence. It is further clear that for the applicability of this provision it is to be shown that the owner of the vehicle knowingly permitted his vehicle to be used for the commission of the offence and, therefore, knowledge on the part of the owner is essential to be shown before he can be held guilty for the punishment of such an offence. Sub-section (1) of Section 35 of the Act provides that in any prosecution for an offence under the Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be 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. As per explanation the culpable mental state as mentioned in this provision includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. As per Sub-section (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. According to this provision if an offence under the Act requires a culpable mental state of the accused, then the Court can raise presumption in regard to the existence of such mental state but at the same time the accused in his defence is entitled to prove that he had no such mental state. According to the explanation knowledge of a fact on the part of the accused is also included in the phrase "culpable mental state" that means if an offence under the provisions of the Act involves mental state of the accused in the form of his knowledge, the Court can presume that the accused had such knowledge.

In the case of Balwinder Singh & Ors. v. Assistant Commissioner Custom and Central Excise (supra), Hon''ble Supreme Court in appeal filed by the accused-appellant found that appellant was original owner of the truck which he sold to some other person, however, registration was not changed in his name. It was further found that no evidence was produced to prove that the appellant knowingly allowed any person to use the vehicle for any illegal purpose or appellant had any control over vehicle and in these circumstances the appellant was acquitted from the charge for the offence punishable under the provisions of the Act.

In the case Bhola Singh v. State of Punjab (supra), it was held by Hon''ble Supreme Court that Section 35 of the Act would be attracted only when prosecution has discharged its initial burden to the effect that accused knowingly used his vehicle for transportation of narcotics. In this case conduct of the accused in giving wrong residential address was held not to be relevant to raise presumption that his vehicle was misused with his knowledge. It was further held that Section35 of the Act provides that the culpable mental state of accused has to be proved as a fact beyond reasonable doubt and existence of such mental state of accused cannot be proved by a preponderance of probabilities.

In the case of Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, , a Bench of three Hon''ble Judges of Supreme Court held that the burden of proof cast on the accused under Section 35 of the Act can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence.

In the case of Dharampal Singh Vs. State of Punjab, , Hon''ble Supreme Court held that possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. Once possession is established the Court can presume that the accused had culpable mental state and have committed the offence. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives statutory recognition of this position because of the presumption available in law.

In the present case from the evidence available on record it is shown that when vehicle in question was intercepted, it was going from Madhya Pradesh to Punjab through Rajasthan. Petitioner being the owner of it, is the best person having knowledge to carry for what goods his vehicle was booked and ability of such goods could have been the best evidence in this regard but neither any explanation has been furnished nor any ability has been produced and in absence of the same at this stage of the proceedings, presumption under Section 35 of the Act can be raised. It is further to be noted that notice under Section 133 of the MV Act was given to the petitioner in the capacity of registered owner of the aforesaid vehicle with a request to provide the name of the driver and it was specifically mentioned in the notice about the seizure of the vehicle by the reason that it was found to carry contraband article and the petitioner although furnished the name of the driver but defence was not taken by him that his vehicle has been used to carry the recovered goods without his knowledge or at the time of seizure the vehicle was not under his control. Apart from that to none of the prosecution witnesses so far examined during the course of trial no such suggestion has been made that his vehicle was used to carry the seized contraband article without his knowledge.

In view of the above, I do not find any substantial change in the facts and circumstances of the case so as to grant benefit of bail to the petitioner under Section 439 Cr.P.C.

Consequently, the third application for grant of bail under Section 439 Cr.P.C. is, hereby, dismissed.