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2011 DIGILAW 2204 (PNJ)

Harbhajan Singh @ Bhajan Singh v. State of Punjab

2011-12-13

RAMESHWAR SINGH MALIK

body2011
JUDGMENT Learned State counsel has filed an affidavit dated 10.12.2011 of Mr.Ramandip Singh Sandhu, PPS, Superintendent, Central Jail, Ferozepur, mentioning the period of imprisonment undergone by the applicant-appellant-Harbhajan Singh @ Bhajan Singh. The same is taken on record. Heard learned counsel for the parties. Sub-Inspector Harpal Singh, In charge CIA Headquarters, Ferozepur, along with SI Gurpiar Singh, ASI Dogar Singh and other police officials were going in a Government vehicle in connection with patrolling and checking of suspicious persons. The police party reached the bus stand of village Mchhi Bugra on the Moga Ferozepur road. At that time, SI Harpal Singh received a wireless message from Rajinder Singh, DSP (Detective), Ferozepur, at 11:30 am regarding one truck bearing No.RJ-13-GA-0378, in which four persons were travelling and there may be heavy quantity of poppy husk in the same. It was also informed that Kuldeep Singh (accused No.1) was coming in the said truck and he was a proclaimed offender in a case pertaining to 38 bags of poppy husk and also in a case under Section 302 IPC, registered at Police Station, Sultanpur. The truck, it was informed, was coming from the side of Faridkot and the accused could be apprehended, if a check post was set up on the Faridkot-Talwandi Bhai road. The police party set up a check post and at about 01:00 pm, the said Tata LP truck came from the side of Faridkot. It was signalled to stop. The driver of the truck stopped the truck and on asking, he disclosed his name as Kashmir Singh @ Sheeru (accused No.2). The person sitting by his side disclosed his name as Jaswinder Singh @ Jassa (accused No.4). On checking the rear side of the truck, bags of cement were found, on which two persons were sitting. On enquiry, they disclosed their names as Kuldeep Singh (accused No.1) and Jagir Singh @ Jagira (accused No.3). SI Harpal Singh, informed the occupants of the truck that he had a doubt that some intoxicant material was there in the truck and a search was to be conducted. The occupants of the truck were informed of their right to get the truck searched in the presence of some Gazetted Officer or a Magistrate. The occupants of the truck replied that they wanted the search to be conducted in the presence of a Gazetted Officer. The occupants of the truck were informed of their right to get the truck searched in the presence of some Gazetted Officer or a Magistrate. The occupants of the truck replied that they wanted the search to be conducted in the presence of a Gazetted Officer. The consent memos (Ex.P-15 to Ex.P-18) of all the four occupants of the truck were prepared, which were signed by them and attested by SI Gurpiar Singh and ASI Dogar Singh. Rajinder Singh DSP (D) was called at the spot and in his presence the search of the truck was carried out. As a result of the search 165 bags of Birla cement were recovered. Under the said bags of cement, there were 30 bags containing poppy husk, which were also recovered. Two samples each, containing 250 gms of poppy husk were separated from each of the bag and were converted into parcels. The remaining poppy husk on weighment was found to be 39 kgs 500 gms. In this manner, 40 kg of poppy husk in each of the 30 bags was recovered. The applicant-appellant-Harbhajan Singh @ Bhajan Singh was not arrested at the spot but he had been proceeded against as he was owner of the truck that was apprehended. The learned trial Court, after considering the evidence and material on record, inter alia held that applicant-appellant-Harbhajan Singh @ Bhajan Singh was the owner of the truck and it was his duty to ensure that the truck was being used for transporting luggage and not for narcotic purposes. It was further observed that it was not possible for a driver of the truck to smuggle 30 bags of poppy husk without the knowledge of applicant-appellant-Harbhajan Singh @ Bhajan Singh. Besides, there was no evidence on the file to show that the transporting of huge quantity of narcotic substances was not in his knowledge. Therefore, according to Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act'- for short), the applicant-appellant-Harbhajan Singh @ Bhajan Singh was also liable for conviction. Learned counsel for the applicant-appellant-Harbhajan Singh @ Bhajan Singh submits that it is not for the accused to show that he has no knowledge of the narcotic drugs being smuggled in his conveyance. In fact, it is for the prosecution to establish the contraband that was being carried was in the knowledge of the owner. Learned counsel for the applicant-appellant-Harbhajan Singh @ Bhajan Singh submits that it is not for the accused to show that he has no knowledge of the narcotic drugs being smuggled in his conveyance. In fact, it is for the prosecution to establish the contraband that was being carried was in the knowledge of the owner. In support of his contention, learned counsel for the applicant-appellant-Harbhajan Singh @ Bhajan Singh cites Ram Pal versus State of Punjab 2003(3) RCR (Criminal) 159 (DB) (P & H) and Bhola Singh versus State of Punjab 2011 (2) RCR(Criminal) 337 (SC) . It is also submitted that the owner of the vehicle is not liable for punishment under Section 25 of the NDPS Act, as there is nothing to show that he has knowingly permitted his truck to be used for carrying the contraband. In response, learned State counsel has submitted that the fact that the truck was being used for carrying the contraband that was recovered, it has to be construed that he had knowledge of the same as there is a presumption of his culpable mental state in terms of Section 35 of the NDPS Act. It is submitted that Section 35 of the NDPS Act envisages that 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. Besides, it is submitted that the imprisonment undergone by the applicant-appellant-Harbhajan Singh @ Bhajan Singh is too less. We have given our thoughtful considerations to the contentions of learned counsel for the respective parties. A Division Bench of this Court in the case of Ram Pal versus State of Punjab (supra) has held that onus is on the prosecution to establish that the owner of the vehicle knowingly permitted the vehicle to be used for commission of an offence under the NDPS Act. The Hon'ble Supreme Court in the case of Bhola Singh versus State of Punjab (supra) held that no evidence had been brought on record in the said case to show that owner of the vehicle had knowingly permitted the use of the vehicle for any improper purpose. The Hon'ble Supreme Court in the case of Bhola Singh versus State of Punjab (supra) held that no evidence had been brought on record in the said case to show that owner of the vehicle had knowingly permitted the use of the vehicle for any improper purpose. Therefore, the sine qua non for the applicability of Section 25 of the NDPS Act, it was held, was not made out. In Bhola Singh's case(supra) regarding the question of presumption raised in terms of Section 54 of the NDPS Act and the presumption of culpable mental state raised under Section 35 of the NDPS Act, it was observed that the Supreme Court in the case of Noor Aga versus State of Punjab & anr. 2008(3) RCR (Criminal) 633, 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 into play. Applying the facts of Bhola Singh's case(supra) to the case of Noor Aga (supra), it was held that it was apparent that the initial burden to prove that the appellant had 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. The question, whether the applicant-appellant-Harbhajan Singh @ Bhajan Singh had “knowingly” allowed his vehicle to be used for transporting the narcotic drugs, would require consideration at the time of final hearing of the appeal. Prima facie, it has not been shown that the prosecution had discharged its burden of establishing that the applicant-appellant-Harbhajan Singh @ Bhajan Singh had “knowingly” allowed his truck to be used for carrying the contraband. Prima facie, it has not been shown that the prosecution had discharged its burden of establishing that the applicant-appellant-Harbhajan Singh @ Bhajan Singh had “knowingly” allowed his truck to be used for carrying the contraband. In terms of the affidavit of Mr.Ramandip Singh Sandhu, PPS, Superintendent, Central Jail, Ferozepur, the applicant-appellant-Harbhajan Singh @ Bhajan Singh has undergone imprisonment of 1 year 8 months and 6 days as on 10.12.2011. There is no other case pending against him. It is also mentioned that he misused the concession of parole for one day. According to the learned counsel for the applicant-appellant-Harbhajan Singh @ Bhajan Singh, this was on account of mis-calculation, only. In the facts and circumstances of the case, sentence of imprisonment of the applicant-appellant-Harbhajan Singh @ Bhajan Singh , is liable to be suspended. Accordingly, the criminal misc.application is allowed and the sentence of imprisonment of applicant-appellant-Harbhajan Singh @ Bhajan Singh shall, during the pendency of the appeal, remain suspended subject to his furnishing personal bond and surety to the satisfaction of the learned Chief Judicial Magistrate, Ferozepur.