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2008 DIGILAW 1723 (PNJ)

Avtar Singh v. State of Haryana

2008-10-04

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J. - This appeal is directed against the order dated 11.12.2007, rendered by the Judge, Special Court, Yamuna Nagar at Jagadhri, vide which he confiscated the jeep bearing registration No. HR-45-9264, which was used by Jaswinder Singh, for the purpose of transporting poppy husk. 2. On 1.10.2006, 38 Kgs. 500 grams poppy husk, was recovered from the aforesaid vehicle, in the area of Village Sabalpur, Police Station Chhappar, District Yamuna Nagar, while the same was being driven by Jaswinder Singh son of Gurdev Singh, resident of Village Sidhpur, Police Station Butana, District Karnal. A case under Section 15 of the NDPS Act was registered against said Jaswinder Singh. He was tried, convicted and sentenced by the trial Court. Since Avtar Singh, appellant, was the registered owner of the vehicle, in question, show cause notice was given to him, to explain, as to why, the jeep, in question, be not confiscated as the same was used for transporting the poppy husk aforesaid with his knowledge. 2-A. Avtar Singh, appellant, in response to the show cause notice, submitted that he was the registered owner of the vehicle No. HR-45-9264. It was further submitted by him that the vehicle was meant for the purpose of Kar Sewa of the Gurdwara. It was further submitted that the said vehicle was used to be sent to other Gurudwaras and villages for collection of donations, grains and material for the purpose of Kar Sewa. It was further submitted by him, that he never authorized the use of his jeep, for any unlawful purpose. He further submitted that he only came to know when his vehicle was taken into possession by the police, that the same was being used for transporting the poppy husk. He further submitted that he did not know from which place, his vehicle was taken into possession by the Police. He also stepped into the witness box as his own witness as, RW1, and examined Balwinder Singh son of Dalip Singh as RW2. Thereafter he closed his evidence. 3. After hearing the Counsel for the parties, and on going through the record of the case, the trial Court, confiscated the jeep/vehicle, aforesaid, vide order dated 11.12.2007. 4. Feeling aggrieved, the instant appeal, was filed, by Avtar Singh Appellant. 5. Thereafter he closed his evidence. 3. After hearing the Counsel for the parties, and on going through the record of the case, the trial Court, confiscated the jeep/vehicle, aforesaid, vide order dated 11.12.2007. 4. Feeling aggrieved, the instant appeal, was filed, by Avtar Singh Appellant. 5. The Counsel for the appellant, at the very out-set, submitted that no evidence was produced by the prosecution, to prove that Avtar Singh, the registered owner of the jeep, knowingly permitted the use thereof, for transporting poppy husk by Jaswinder Singh. He further submitted that no opportunity was granted to Avtar Singh, to lead his evidence, that the jeep was used for transporting poppy husk, without his knowledge. He further submitted that the aforesaid jeep, therefore, could not be confiscated. He relied upon Santa Singh v. State of Punjab, 2005(1) RCR(Criminal) 26 (P&H), in support of his contention. 6. On the other hand, the Counsel for the respondent, submitted that a show cause notice was issued to Avtar Singh, appellant. He filed reply. He also took up the plea, that the jeep was used without his knowledge, by Jaswinder Singh for transporting the poppy husk. He further submitted that the order of the trial Court confiscating the jeep/vehicle, in question, being legal and valid, is liable to be upheld. 7. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the contentions advanced by the Counsel for the appellant, being devoid of merit, must fail, for the reasons to be recorded hereinafter. Section 60(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 read as under :- "Any animal or conveyance used in carrying any narcotic drug or psychotropic substance or controlled substance or any article liable to confiscation under sub-section (1) or-sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use." The provision aforesaid is unambiguous in terms. It does not admit of any doubt. The owner of the vehicle is required to take all reasonable precautions, against the misuse of his vehicle. It does not admit of any doubt. The owner of the vehicle is required to take all reasonable precautions, against the misuse of his vehicle. He is not only required to prove that the said vehicle was used without his knowledge or connivance for transporting the contraband, but is also required to prove according to the provisions of Section 60(3) of the Act that it was so used, without the knowledge or connivance of his agent, if any, and the person-in-charge of the said vehicle, and that each of them, had taken all reasonable precautions, against such use. In the instant case, no doubt, Avtar Singh, respondent- appellant, while appearing as, RW1, stated that the vehicle was meant for Kar Sewa of the Gurudwara, and the same used to be sent to other Gurudwaras and villages for collection of donations, grains and material for the purpose of Kar Sewa. He also stated that he never authorized the use of the said vehicle for any unlawful purpose. He further stated that he had absolutely no knowledge that the poppy husk was being transported, in his vehicle. Balwinder Singh, RW2, also supported his version. However, during the course of cross- examination Avtar Singh, RW1, categorically admitted that accused Jaswinder Singh was working as driver, on his jeep, at the relevant time. It means that Jaswinder Singh driver of the vehicle, in question, in which the poppy husk was being transported, at the relevant time, was his agent. As stated above, Jaswinder Singh was convicted and sentenced. Under these circumstances, Avtar Singh, appellant, failed to prove that Jaswinder Singh, driver of the vehicle, being his agent, and in-charge of the same, at the relevant time, took all reasonable precautions, against such mis-use. What sort of precautions the owner had taken, in ensuring that the jeep was not misused for transporting the contraband by the driver thereof, who was his agent, is not evident from the record. Under these circumstances, Avtar Singh failed to prove that the jeep was being used for transporting the contraband without his knowledge or the knowledge of his agent and he took all reasonable precautions, against such use. No help can be drawn by the Counsel for the appellant from Santa Singhs case (supra) as the facts thereof are completely distinguishable, from the facts of the instant case. No help can be drawn by the Counsel for the appellant from Santa Singhs case (supra) as the facts thereof are completely distinguishable, from the facts of the instant case. In Santa Singhs case (supra) the tractor- trolley which was used for transporting poppy husk, was confiscated, without issuance of notice and without affording an opportunity of hearing to the owner thereof. It was, under these circumstances, that the order confiscating the tractor trolley was set aside, and the case was remanded to the trial Court to consider the question of confiscation of the tractor-trolley, in question after affording due opportunity of hearing to the owner, to enable him to lead evidence, in support of his claim and thereafter decide the matter, in accordance with law. In the instant case, show cause notice, was given to the appellant. He was afforded an opportunity of leading evidence. He led evidence, which was duly considered by the trial Court, and ultimately, it came to the conclusion, that the vehicle, in question, was being used with the knowledge of the owner, by his driver for transporting the poppy husk. The trial Court rightly confiscated the jeep, in question. The submission of the Counsel for the appellant, in this regard, being without merit, must fail and the same stands rejected. 8. No other point was urged by the counsel for the parties. 9. For the reasons recorded, hereinbefore, the appeal is dismissed. The order dated 11.12.2007, confiscating the vehicle, is upheld. The trial Court/Chief Judicial Magistrate, is directed to comply with the judgment with due promptitude, and, if the jeep has not already been taken into custody, the same be taken into custody forthwith and dealt with, in accordance with the provisions of law. The compliance report be sent immediately. Appeal dismissed.