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TMI Blog2023 (4) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... ord 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 statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses, they informed their names as Joginder Singh s/o Jang Singh and Gurmail Singh s/o Nachhattar Singh. They also disclosed the name of the owner of the truck as Harbhajan Singh. The driver and the cleaner then went away on the pretext of calling the owner but never returned. Police, on suspicion that the bags loaded in the truck were containing some contraband substance, unloaded them and took them into custody. Samples were drawn and sent for testing. After investigation, chargesheet was filed against Joginder Singh, Gurmail Singh and the Appellant. The Trial Court acquitted Joginder Singh and Gurmail Singh as two of the witnesses who according to prosecution had informed the police party about the names of the driver and cleaner of the truck were declared hostile. However, the Appellant who was the registered owner of the truck was convicted under Section 25 of the NDPS and the conviction was upheld by the High Court. 3. Brief argument raised by the learned counsel for the appellant is that Section 25 of the NDPS Act provides that an owner of the vehicle could be convicted only if he knowingly permits use of his vehicle for commission of any offence. No such case was made out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. 8. The issue was considered by this Court in Bhola Singh s case (supra). 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. Relevant paragraphs thereof are extracted below: 8. 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. 9. The High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough he was a resident of Fatehabad in Haryana and that the Appellant had taken the truck on superdari. Registration of the offending truck cannot by any stretch of imagination fasten him with the knowledge of its misuse by the driver and others. (emphasis supplied) 9. On the facts of the case in hand, it is evident that FIR No.68 dated 16.05.2000 was registered on a complaint by Sub- Inspector Ram Mehar (PW-8) who was on a petrol duty when it was found the truck no. PAT/2029 was lying turtle and bags of powder scattered. He was informed by two shopkeepers at the nearby place, namely, Ram Sarup (PW-6) and Naresh Kumar (PW-10) that the accident occurred at 9 P.M. on 15.05.2000. After the accident, the driver and the cleaner came out of the truck cabin and on enquiry by the said witnesses they informed their names as Joginder Singh s/o Jang Singh and Gurmail Singh s/o Nachhattar Singh. They claimed themselves to be the driver and cleaner of the truck. They had gone to inform the owner of the truck of the said accident but did not return. Having suspicion that the truck was carrying contraband substances, both the truck and the contraband items were taken into possession. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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