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.