2023 (4) TMI 1066 - SC - Indian Laws

Smuggling of huge quantity of contraband - failure to prove that the truck was not being used for any illegal activities - vicarious liability of owner of the truck - HELD THAT - The basic facts of the case as have been noticed above are not in dispute. The Appellant who is the registered owner of the truck was not arrested from the spot. A case was set up by the prosecution that Joginder Singh and Gurmail Singh were driver and cleaner of the truck. Even they were not arrested from the spot. Their identity was established on the basis of the information furnished to the police party by Ram Sarup (PW-6) and Naresh Kumar (PW-10). However, when appeared in Court, they were declared hostile. Joginder Singh and Gurmail Singh were acquitted. The Appellant is owner of the truck. He was not arrested from the spot. Section 25 of the NDPS Act provides that if an owner of a vehicle knowingly permits it to be used for commission of any offence punishable under the NDPS Act, he shall be punished accordingly. In the case in hand, the prosecution has failed to produce any material on record to show that the vehicle in question, if was used for any illegal activity, was used with the knowledge and consent of the Appellant. Even presumption as provided for under Section 35 of the NDPS Act will not be available for the reason that the prosecution had failed to discharge initial burden on it to prove the foundational facts. In the absence thereof, the onus will not shift on the accused. The issue was considered by this Court in BHOLA SINGH VERSUS STATE OF PUNJAB 2011 (2) TMI 1350 - SUPREME COURT . It was opined that unless the vehicle is used with the knowledge and consent of the owner thereof, which is sine qua non for applicability of Section 25 of the NDPS Act, conviction thereunder cannot be legally sustained. The case sought to be set up by the prosecution was that the driver and the cleaner of the truck made extra judicial confession before Balwan Singh s/o Chatar Singh. Ram Mehar who is the author of the FIR appeared as PW-8. In his statement also, nothing was stated against the Appellant. He also referred to the statement of Balwan Singh s/o Chatar Singh recorded during investigation, who was not produced in evidence. The appellant in his statement recorded under Section 313 CrPC denied all the suggestions. In the entire evidence led by the prosecution, no material was produced against the Appellant to discharge initial burden to prove the foundational facts that the offence was committed with the knowledge and consent of the Appellant. It is a case in which he was not with the vehicle nor was he arrested from the spot when the accident occurred or when truck and contraband were taken into custody - The Trial Court had put entire burden of defence on the Appellant being the registered owner of the vehicle. The Court held that the driver and cleaner of the vehicle being poor will not take risk of smuggling such huge quantity of contraband without the connivance of the owner and it was for the appellant to clear his stand. In the case in hand, the primary error committed by the Courts below while convicting the Appellant is that the onus is sought to be shifted on him to prove his innocence without the foundational facts having been proved by the prosecution. Hence, the conviction of the Appellant cannot be legally sustained. Appeal allowed.

Summary

Issues:
The judgment involves the conviction of the Appellant under Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985, based on the ownership of a truck involved in illegal activities.

Conviction and Sentence Upheld:
The Appellant was convicted and sentenced to 10 years of imprisonment under Section 25 of the NDPS Act by the Trial Court, with the High Court upholding the decision.

Facts of the Case:
The incident involved the Appellant's truck overturning near a specific location, leading to the discovery of contraband substances. The driver and cleaner of the truck, as identified by witnesses, absconded after the accident, leading to the Appellant's implication as the owner.

Appellant's Argument:
The Appellant's defense centered around the lack of evidence proving his knowledge or consent regarding the illegal use of the truck. He claimed to have given the truck on hire for carrying sand, distancing himself from the illegal activities.

State's Argument:
The State contended that the Appellant failed to prove that the truck was not used for illegal purposes, asserting his vicarious liability as the owner. The absence of evidence supporting the Appellant's claim weakened his defense.

Court's Analysis:
The Court highlighted the prosecution's failure to establish the Appellant's knowledge or consent regarding the illegal use of the truck. The burden of proof lay with the prosecution, and the presumption under Section 35 of the NDPS Act could not be invoked due to insufficient foundational facts.

Precedent and Legal Interpretation:
Citing previous judgments, the Court emphasized that conviction under Section 25 required the owner's knowing permission for illegal activities. The onus of proving the owner's knowledge rested with the prosecution, and the lack of evidence regarding the Appellant's mental state was crucial in determining culpability.

Judgment and Discharge:
Ultimately, the Court found the conviction unsustainable due to the prosecution's failure to establish foundational facts. The appeal was allowed, overturning the judgments of the lower courts, and the Appellant's bail bonds were discharged.