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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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