BHOLA SINGH Vs STATE OF PUNJAB
Bench: HARJIT SINGH BEDI,CHANDRAMAULI KR. PRASAD, , ,
Case number: Crl.A. No.-000448-000448 / 2006
Diary number: 20662 / 2005
Advocates: TRILOKI NATH RAZDAN Vs
KULDIP SINGH
REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 448 OF 2006
BHOLA SINGH .. APPELLANT(S)
vs.
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.:
-5- 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.