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Punjab-Haryana High Court
Tarsem Kumar vs State Of Punjab on 22 March, 2021259
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH.
CRM-M-3780-2021
Date of Decision: 22.03.2021
Tarsem Kumar
…Petitioner
V/S
State of Punjab
…Respondents
CORAM: Hon’ble Mr. Justice B.S. Walia.
Present: Mr. Aditya Sanghi, Advocate for the petitioner.
Mr. Sarbjit Singh Cheema, AAG, Punjab.
***
B.S. WALIA, J (VC)
1. Case is being taken up for hearing through Video Conferencing
due to Covid-19 pandemic.
2. Prayer in the petition under Section 439 Cr.P.C. is for grant of
regular bail to the petitioner during the pendency of trial in case FIR No.231
dated 15.11.2020 registered under Sections 15(c)/18(b), Narcotic Drugs and
Psychotropic Substances Act, 1985 at Police Station Sangat, District
Bathinda.
3. Learned counsel contends that the petitioner has been involved
in the instant case on account of his being owner of the truck on the basis of
disclosure statement of co accused from whom 300 kg of poppy husk and
1.5 Kg opium was recovered and who implicated the petitioner by stating
that he had gone to Rajasthan on the asking of the petitioner on 14.11.2020
at the address as given by the petitioner and that poppy husk was partially
stacked at the house of the petitioner. Learned Counsel contends that
implication on the basis of disclosure statement alone is legally
unsustainable, and there was no other material to connect the petitioner with
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the commission of the offence. Moreover, no recovery was made from the
petitioner nor was the petitioner involved in any other case.
Learned counsel has referred to the decision of Hon’ble the Supreme
Court in Bhola Singh Versus State of Punjab 2011(11) SCC 653 to
contend that mere ownership of truck by the accused without there being any
other evidence to connect the accused with the commission of the offence,
nor there being any evidence to indicate that the accused had knowingly
permitted the use of his vehicle for any improper purpose, a sine qua non for
the applicability of Section 25 of the Act, Section 35 of the Act could also
not be attracted in the absence of initial burden being discharged that the
accused had knowledge that his vehicle was being used for transporting
narcotic drugs. Learned Counsel contends that it is only if the initial burden
is discharged that the accused had knowledge that his vehicle was being
used for transporting narcotics that the presumption under Section 35 of the
Act would arise.
4. Learned counsel contends that it could not be presumed that the
petitioner had knowledge that his vehicle was being used for transporting the
narcotic substances merely on the basis of disclosure statement of co-
accused Sahib Singh, that the perusal of the FIR revealed that the trolla
bearing No.PB03AP-5750 while being driven by co accused Sahib Singh on
being stopped on 12.20 PM on 15.11.2020 on Bathinda-Dabwali Road was
found loaded with 680 yellow coloured plastic bags of super fertilizers out
of which 20 bags were of black colour and which were opened, checked and
from which 15 kg poppy husk was recovered from each sack while from one
of said sacks, apart from poppy husk, 1.5 kg opium contained in a plastic
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carry bag, whose mouth was tied with a thread was also recovered, that from
the photocopy of RC taken into possession by the police, the petitioner was
learnt to be owner of the trolla while as per the Builty, bags of Single Super
Phosphate Roh were learnt to have been loaded from Sadhanba Phosphate
and Chemicals Limited, Debari Railway Station Road Gudli Debari, Udaipur
(Rajasthan) for delivery to M/s Indian Potash Limited C/o Gagan Krishi
Farm Mansa.
5. Learned AAG has on query clarified that “Horse Trolla” is a
powered vehicle and does not refer to a horse driven carriage.
6. Learned counsel by relying on the decision in Bhola Singh’s
case (supra) contends that since the vehicle was being driven by driver
Sahib Singh, the onus that the petitioner had not permitted the use of his
vehicle for transporting narcotic substances had been discharged, therefore,
neither the provisions of Section 25 nor presumption under Section 35 of the
Act was attracted. Relevant extract of the decision of Bhola Singh’s case
(supra) is reproduced as under:
“5. 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 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.
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5A. 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.
6. 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.
6A. 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
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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.
7. 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 v. State of Punjab and Anr., 2008(3)
RCR (Criminal) 633 :2008(4) R.A.J. 381 : (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
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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 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.
7. Reference is also made by learned counsel for the petitioner to
the decision of Hon’ble the Supreme Court in Haricharan Kurmi Vs. State
of Bihar” in Criminal Appeals No.208 and 209 of 1963 to contend that
mere implication on the basis of disclosure statement is legally
unsustainable. Relevant extract of the decision of Haricharan Kurmi’s case
(supra) is reproduced as under :
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“As we have already indicated, this question has been
considered on several occasions by judicial decisions
and it has been consistently held that a confession cannot
be treated as evidence which is substantive evidence
against a co-accused person. In dealing with a criminal
case where the prosecution relies upon the confession of
one accused person against another accused person, the
proper approach to adopt is to consider the other
evidence against such an accused person, and if the said
evidence appears to be satisfactory and the court is
inclined to hold that the said evidence may sustain the
charge framed against the said accused person, the court
turns to the confession with a view to assure itself
that the conclusion which it is inclined to draw from the
other evidence is right.
8. Learned AAG, Punjab, on the other hand, has fairly conceded
that apart from the disclosure statement, there is no other material to connect
the petitioner with the commission of the offence. Learned AAG has not
been able to point out any other material to connect the petitioner with the
commission of the offence nor has learned AAG been able to show that the
petitioner was aware that his vehicle was being used for improper purpose of
transporting narcotics except on the basis of his being owner of the truck. I
have considered the submissions of learned counsel and in view of the
decision of Hon’ble the Supreme Court in Haricharan Kurmi’s case
(supra), I am of the view that the implication of the petitioner in the instant
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case on the basis of disclosure statement alone without there being any
recovery from the petitioner and without there being any other material to
connect the petitioner with the commission of the offence, is debatable
especially in the absence of material to show that the petitioner was aware
that his vehicle was being used for improper purpose of transporting
narcotics and this supposition could not be drawn merely on the basis of his
being owner of the truck. Accordingly, neither Section 25 nor the
presumption under Section 35 of the Act would be attracted.
9. In the light of position noted above, the instant petition is
allowed. Petitioner- Tarsem Kumar is ordered to be released on regular bail
during the pendency of the trial on his furnishing bail bond and surety bond
to the satisfaction of the learned trial Court/Chief Judicial Magistrate/Duty
Magistrate concerned, provided he is not required in any other case. The
petitioner shall also comply with the conditions contained in Section 437(3)
Cr.P.C. However, nothing stated hereinabove would be construed as an
expression of opinion on the merits of the case.
(B.S. Walia)
Judge
22.03.2021.’Rajender’
Whether speaking/reasoned : Yes/No.
Whether reportable : Yes/No.
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