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2008 DIGILAW 1926 (PNJ)

Balraj Singh v. State Of Haryana

2008-11-18

SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This appeal is directed against the order dated 20.8.2007, rendered by the Court of Sessions Judge, Sirsa, vide which the Canter, bearing registration No. HR-14/1519 was ordered to be confiscated, to the State of Haryana, as per rules. 2. The facts, in brief, are that Om Parkash, appellant, was found transporting poppy husk, in Canter No. HR-14/1519. He was arrested. FIR No. 73 dated 20.5.2005 under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act" only) Police Station Sadar, Sirsa, was registered against him. He was convicted vide judgment of conviction and the order of sentence dated 11.1.2007 and sentenced to undergo RI for 10 years and to pay a fine of Rs. 1,00,000/-, in default of payment of fine, he was directed to undergo further RI for two years. 3. Since the Canter bearing registration No. HR- 14/1519 belonged to Gurnam Singh and Balraj Singh, in whose favour the same had been released on superdari, during the pendency of trial, a show cause notice was issued to them, to explain as to why, the same be not confiscated to the State of Haryana, for knowingly permitting the same for transporting the contraband. 4. In pursuance of the show cause notice, they put in appearance, in the Court, and filed reply, wherein, it was stated by them that they were owners, in equal shares of the aforesaid Canter. They further stated that they employed Om Parkash as driver on the said Canter. It was further stated by them that Om Parkash used to operate the said Canter. They further stated that they never authorized Om Parkash to transport poppy-husk, in the said Canter. They appeared as PW9 and PW10, in the main case, against Om Parkash and deposed, therein, that they had no knowledge about his activities and that he had loaded poppy husk in the Canter of his own. They also stated that the vehicle was not liable to be confiscated. 5. After hearing the Counsel for the parties, and, on going through the record, the trial Court came to the conclusion, that the Canter was knowingly permitted to be used, by both the owners, for the purpose of transporting poppy husk, by Om Parkash and accordingly, the said Canter was confiscated. 6. 5. After hearing the Counsel for the parties, and, on going through the record, the trial Court came to the conclusion, that the Canter was knowingly permitted to be used, by both the owners, for the purpose of transporting poppy husk, by Om Parkash and accordingly, the said Canter was confiscated. 6. Feeling aggrieved, the instant appeal, was filed by Gurnam Singh and Balraj Singh, appellants. 7. I have heard the Counsel for the parties and have gone through the evidence and record, of the case, carefully. 8. The Counsel for the appellants, at the very outset submitted that it was for the prosecution to prove, beyond doubt, that the Canter, in question, was knowingly permitted to be used, by the appellants, for transporting poppy husk, by Om Parkash. He further submitted that the prosecution miserably failed to prove this factum. He further submitted that the appellants never knowingly allowed the use of the Canter by Om Parkash for the purpose of transporting poppy husk. He further submitted that Om Parkash was using the said Canter, unauthorisedly, for the purpose of transporting the contraband. He further submitted that the order impugned is, therefore, illegal and liable to be set aside. 9. On the other hand, the Counsel for the respondent, submitted that the appellants knowingly permitted the use of Canter, by their driver, for the purpose of transporting poppy husk. He further submitted that, in accordance with the provisions of law a show cause notice, was given to them, and they were also afforded an opportunity to iead their evidence. He further submitted that the trial Court was right in passing the order confiscating the Canter, in question. 10. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is not a fit case, in which the appeal should be accepted, for the reasons to be recorded hereinafter. He further submitted that the trial Court was right in passing the order confiscating the Canter, in question. 10. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is not a fit case, in which the appeal should be accepted, for the reasons to be recorded hereinafter. Section 60(3) of the Act, clearly depicts that any animal or conveyance used in carrying any narcotic drug or psychotropic 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 his knowledge or connivance or without the knowledge or connivance of 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. Section 63 of the Act clearly lays down, that if the Court comes to the conclusion, that the article is liable to be confiscated, no order of such confiscation, shall be made, until the expiry of one month, from the date of seizure or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim. In the instant case, as stated above, a show cause notice, was issued to the owners, to explain as to why the Canter, in question, be not confiscated, as the same was knowingly permitted to be used by them for the purpose of transporting poppy husk. They were also afforded an opportunity to lead their evidence. They, however, placed reliance on their statements, as PW9 and PW10, which were recorded in the main case. As per the provisions of Section 60(3), the owner of the vehicle was not only to prove, that the vehicle was being used without his knowledge or connivance, by his agent if any, or the person-in-charge of the animal or conveyance but, he is also required to prove that each one of them, had taken reasonable precautions, against such use. There is nothing, on record, to indicate that the appellants had taken all reasonable precautions, against such use. There is nothing, on record, to indicate that the appellants had taken all reasonable precautions, against the use of the Canter, in question for the purpose of transpoting the contraband. There is nothing, on record, to indicate that the appellants had taken all reasonable precautions, against such use. There is nothing, on record, to indicate that the appellants had taken all reasonable precautions, against the use of the Canter, in question for the purpose of transpoting the contraband. Had the owners and their agent i.e. driver of the vehicle, who was incharge of the same, at the relevant time, taken reasonable precautions against the misuse of the Canter in question, the contraband would not have been transported therein. The language of Section 60(3) of the Act, is very harsh. So long as, this Section exists, on the Statue book, the Court has to interpret the same, as it is. Since the appellants failed to prove that the vehicle in question, was being used for transporting the contraband without their knowledge and all of them, i .e. owners as also the driver of the vehicle took all reasonable precautions to avoid the misuse of the same, for transporting the contraband, the order passed by the trial Court by no stratch of imagination, could be said to be illegal. The order passed by the trail Court is liable to be upheld. 11. For the reasons recorded above, the appeal, being without merit, must fail, and the same is dismissed. The Chief Judicial Magistrate is directed to take steps to comply with the order forthwith, and submit the compliance report within a period of one month from the date of receipt of a copy of the same.