ORDER : Prashant Kumar Agarwal, J. 1. Heard learned counsel for the parties. 2. The accused-appellant has filed this appeal under Section 374 Cr.P.C. against the judgment and order dated 8.9.2011 passed by the Special Judge, NDPS Cases, Beawar (District Ajmer) in Sessions Case No. 14/2007 whereby the appellant was convicted for offence under Section 8/21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the 'Act') and sentenced for rigorous imprisonment for ten years and fine of rupees one lac and in default thereof to further undergo rigorous imprisonment for one year and also for offence under Section 8/25 of the Act and sentenced to suffer rigorous imprisonment for ten years and fine of Rs. one lac and in default thereof to further suffer rigorous imprisonment for one year. It was also directed that the aforesaid substantive sentences would run concurrently. It is to be noted that four co-accused, who were tried along with the appellant, have been acquitted whereas co-accused-Shri Liyakat Khan died during the course of trial and proceedings against him were dropped. It is further to be noted that appellant has been acquitted for offence under Section 29 of the Act. 3. The appellant was arrested, charged and tried for the aforesaid offences on the premise that he is registered owner of Bolero Jeep bearing registration No. RJ-09-UA-0060 and he was also one of the occupant of the aforesaid vehicle along with deceased-accused-Shri Liyakat Khan when the same was intercepted and searched on 20.11.2006 at about 10.30 a.m. near Sadar Police Station, Beawar and from the jeep narcotic drug (heroin) weighing about 2 Kg. was recovered and at that time appellant and Shri Liyakat Khan were not having valid permit or licence to have in their possession and transport the aforesaid contraband. It is the case of prosecution that a confidential information was received by Shri Pradeep Kumar Sharma, NCB Jodhpur on 19.11.2006 to the effect that appellant and Shri Liyakat Khan would transport heroin weighing 2 Kg. in the aforesaid vehicle on 20.11.2006 sometime between 10 am to 12.00 am and deliver it to some person at Ajmer. On such information a raiding party was constituted, two independent witnesses were associated with it and recovery of the aforesaid contraband was effected on 20.11.2006 as already stated. in the aforesaid vehicle on 20.11.2006 sometime between 10 am to 12.00 am and deliver it to some person at Ajmer. On such information a raiding party was constituted, two independent witnesses were associated with it and recovery of the aforesaid contraband was effected on 20.11.2006 as already stated. After recovery appellant and Shri Liyakat Khan were arrested but before that their statements under Section 67 of the Act were recorded and during further investigation the acquitted accused were also found involved in the incident. After investigation complaint was filed and in support of the charges prosecution produced oral as well as documentary evidence whereas appellant in his statement under Section 313 Cr.P.C. denied the evidence produced by the prosecution but in defence no evidence was produced by him. Learned trial Court after considering the submissions made on behalf of the respective parties and the evidence made available on record, convicted and sentenced the appellant whereas co-accused were acquitted. As already stated, proceedings against Shri Liyakat Khan were dropped as he died during the course of trial. 4. On the basis of evidence available on record, it was found by the learned trial Court that as the registration of the aforesaid vehicle admittedly stands in the name of appellant and it is also shown that he was one of the occupant of the jeep along with the deceased-accused-Shri Liyakat Khan at the time of the recovery of the aforesaid contraband, knowledge can easily be attributed on his part that the aforesaid contraband is being transported in the vehicle which stands in his name. Learned trial Court also held that the appellant was in conscious possession of the recovered narcotic drug and it was being transported in the aforesaid vehicle within his knowledge. Learned trial Court further held that appellant failed to discharge his burden that he was not having knowledge of the fact that aforesaid narcotic drug has been concealed in the vehicle by Shri Liyakat Khan. For its finding learned trial Court relied upon the principle of law laid by Hon'ble Supreme Court in the case of Madan Lal & Ors. v. State of Himachal Pradesh reported in 2003 Cr.L.J. 3868. 5. For its finding learned trial Court relied upon the principle of law laid by Hon'ble Supreme Court in the case of Madan Lal & Ors. v. State of Himachal Pradesh reported in 2003 Cr.L.J. 3868. 5. Assailing the findings of the trial Court, learned counsel for the appellant submitted that although it is an admitted fact that the appellant was registered owner of the aforesaid vehicle and now he does not dispute the fact that on the aforesaid date, time and place narcotic drug (heroin) weighing about 2 Kg. without any valid licence or permit was recovered by the officers of NCB Jodhpur from the aforesaid vehicle and at that time appellant was also one of the occupant along with deceased-accused-Shri Liyakat Khan but no evidence is available on record to show that appellant was having knowledge of the fact that the recovered contraband is being transported in the aforesaid vehicle and in absence thereof he cannot be said to be in conscious possession thereof or that he permitted Shri Liyakat Khan to use his vehicle for transportation of the recovered contraband having knowledge that it would be used by him to transport the same. 6. Inviting attention to statement of PW.1-Recovery Officer-Shri Narendra Jangid, it was submitted by the learned counsel for the appellant that it is an admitted case of the prosecution that when the aforesaid vehicle was intercepted and deceased accused-Shri Liyakat Khan was interrogated he admitted before the Recovery Officer that illegal narcotic drug is being transported by them in the aforesaid vehicle, which has been concealed by him in the bag containing maize. It is also admitted fact that it is Liyakat Khan, who opened the bag admitting that the narcotic drug has been concealed by him in it and the same was taken out from the bag by him only. It was submitted that in view of the aforesaid admitted facts, it cannot be said that the recovered contraband was in the conscious possession of the appellant and he was having knowledge that Shri Liyakat Khan has concealed some narcotic drug in the aforesaid bag. Merely because appellant happens to be one of the occupants of the vehicle or he was registered owner thereof, conscious possession on his part cannot be attributed. It was further submitted that statement of Shri Liyakat Khan (Ex. Merely because appellant happens to be one of the occupants of the vehicle or he was registered owner thereof, conscious possession on his part cannot be attributed. It was further submitted that statement of Shri Liyakat Khan (Ex. P/18) was recorded under Section 67 of the Act by the concerned Officer on 20.11.2006 in which he has specifically stated that although appellant was having knowledge that he is involved in smuggling of narcotic drugs, but he was having no knowledge about the recovered contraband. He also stated that he borrowed aforesaid vehicle from appellant for coming to Ajmer and appellant accompanied him in the vehicle by saying that he would visit Pushkar. During the course of recording of statement of Shri Liyakat Khan under Section 67 of the Act, the Officer recording the statement specifically questioned Shri Liyakat Khan whether the appellant was having knowledge about the recovered narcotic drug to which it was replied by him that appellant was not at all having knowledge that he is transporting the recovered narcotic drug. It was submitted by the learned counsel for the appellant that when deceased-accused-Shri Liyakat Khan in his statement under Section 67 of the Act, upon which the prosecution has heavily relied, has specifically said that the appellant is having no knowledge about concealment, possession and transportation of the recovered contraband, knowledge on his part cannot be attributed merely by the reason that he happens to be owner of the vehicle and occupant of the same at the time of recovery. 7. Inviting attention towards statement of appellant himself (Ex. P/21), it was also submitted that at first opportunity appellant although admitted that he was having knowledge that Shri Liyakat Khan is dealing in smuggling of some illegal narcotic drugs, but at the same time he also stated that he was not having knowledge about the recovered narcotic drug. It was submitted by the learned counsel for the appellant that in view of the evidence available on record, appellant is liable to be acquitted. 8. On the other hand, learned Special Public Prosecutor-Shri Tej Prakash Sharma controverting the submissions made on behalf of the appellant submitted that in view of the admitted/proved facts that the registration of vehicle in question stands in the name of appellant and he was also occupant of the same when the recovery was effected, knowledge on his part can easily be attributed. It was further submitted that once recovery was made from a vehicle registered in the name of appellant and he was also occupant of the same when recovery was made burden shifted upon him to prove that he was not in conscious possession thereof and the vehicle was used by Shri Liyakat Khan for transportation of the recovered contraband without his knowledge, but no evidence was produced by him. It was further submitted that when appellant admits that he was having knowledge of the fact that Shri Liyakat Khan is dealing in smuggling of narcotic drugs and the polythene bag was put by Shri Liyakat Khan in a bag containing maize in the presence of appellant, it can be inferred that the appellant was having knowledge that Shri Liyakat Khan has concealed some narcotic drug in the maize bag and even then he accompanied with him in the jeep. It was submitted that appellant cannot escape from his liability merely by the reason that as per the Recovery Officer-Shri Narendra Jangid (PW.1) the bag of narcotic drug was brought out by Shri Liyakat Khan from the maize bag or Shri Liyakat Khan in his statement under Section 67 of the Act has said that appellant was having no knowledge about the recovered contraband. Inviting attention to Section 35 of the Act, it was submitted that once possession and transportation of recovered contraband was proved by the prosecution, burden shifted upon the appellant to show that he was not having conscious possession or his vehicle was used for transportation of the contraband without his knowledge. 9. I have considered the submissions made on behalf of the respective parties in the light of evidence available on record as well as the relevant legal provisions and well settled legal position. 10. The relevant part of Section 8 of the Act prohibits possession and transportation of narcotic drugs and psychotropic substances without a valid license or permit. 11. 9. I have considered the submissions made on behalf of the respective parties in the light of evidence available on record as well as the relevant legal provisions and well settled legal position. 10. The relevant part of Section 8 of the Act prohibits possession and transportation of narcotic drugs and psychotropic substances without a valid license or permit. 11. Clause (c) of Section 21 of the Act provides that whoever in contravention of any provision of the Act or any rule or order made or condition of license granted thereunder possesses or transports any manufactured drug or any preparation containing any manufactured drug shall be punishable where the contravention involves commercial quantity with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine, which shall not be less than one lac rupees but which may extend to rupees two lacs. It is not disputed that 'Heroin' is a manufactured drug within the meaning of the provisions of the Act. 12. Section 25 of the Act provides that whoever being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of the Act shall be punishable with the punishment provided for the offence. 13. Section 35 of the Act provides 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. As per Section (2) of Section 35 of the Act for the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. 14. As per Section (2) of Section 35 of the Act for the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. 14. As per Section 8 readwith Section 21 of the Act, although possession and transportation of a narcotic drug is also an offence, but at the same time it is well settled legal position that such narcotic drug must be in conscious possession of the accused or he must have knowledge of the fact that the narcotic drug is being transported in the vehicle. 15. For the applicability of Section 25 of the Act, it is essential that the owner of the vehicle must knowingly permit his vehicle to be used for the commission by any other person of an offence punishable under any provision of the Act. Thus, without knowledge on the part of the owner of the vehicle offence cannot be attributed to him, but as per Section 35 of the Act, Court can presume mental state of the accused i.e. knowledge on the part of the owner and burden shifts upon him to prove that he had no such knowledge. 16. As per sub-section (2) of Section 35 of the Act, it is not sufficient to establish it by preponderance of probability but the owner has to prove it beyond reasonable doubt as in all criminal cases burden lies on the prosecution to prove the charge beyond reasonable doubt. 17. It is also well settled legal position that if a fact is required to be proved by accused, the same can be discharged through different modes. One of the mode is that he can rely upon materials available in the prosecution evidence. Next is, in addition to that, he can illicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He can also adduce other evidence when he is called upon to enter on his defence. One of the mode is that he can rely upon materials available in the prosecution evidence. Next is, in addition to that, he can illicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He can also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence which are such as to give reasonable assurance to the Court that the accused could not have had the knowledge of the required intention, the burden cast upon him under Section 35 of the Act would stand discharged even if he has not adduced any evidence of his own when he was called upon to enter on his defence. 18. In the light of the aforesaid legal position, it is to be seen whether the aforesaid offences can be said to have been committed by the appellant. 19. It is an admitted fact that the vehicle, from which the recovery of the present contraband was made, stands in the name of appellant and now he does not dispute the fact that the contraband was recovered in the aforesaid manner in his presence and he was also occupant of the vehicle alongwith Shri Liyakat Khan when the recovery was made, but in view of the evidence available on record, it cannot be held beyond reasonable doubt that the appellant was in conscious possession thereof i.e. he was having knowledge that the recovered contraband is being transported in the vehicle in which he is also traveling with Shri Liyakat Khan or he permitted Shri Liyakat Khan to use his vehicle for transportation of the recovered contraband having knowledge that it is being used for the same. As per the statement of PW.1-Recovery Officer Shri Narendra Jangid, when the aforesaid vehicle was intercepted, appellant and Shri Liyakat Khan were found in it and Shri Liyakat Khan, who was on the driver seat, on being interrogated told him that illegal narcotic drug is being transported in the vehicle which has been concealed by him in the maize bag. As per his further statement, it is Shri Liyakat Khan, who brought the maize bag outside from the vehicle and opened it and brought out a polythene bag from it and admitted that it contains narcotic drug. As per his further statement, it is Shri Liyakat Khan, who brought the maize bag outside from the vehicle and opened it and brought out a polythene bag from it and admitted that it contains narcotic drug. He has further stated that Shri Liyakat Khan opened the polythene bag in which a brown substance was found. It is clear that at the time of the said recovery appellant kept mum and even no enquiry of any kind was made by him by the Recovery Officer. Apart from that, Shri Liyakat Khan in his statement recorded under Section 67 of the Act in very clear terms said that although appellant was having slight knowledge that he is dealing in narcotic drugs, but so far as the recovered drug is concerned, he is having no knowledge about it because he accompanied him in the jeep as he told him that he is going to Ajmer to meet his sister upon which appellant said I will visit Pushkar and, therefore, he also accompanied with him. In reply to a specific question by Officer recording this statement also Shri Liyakat Khan stated that appellant is having no knowledge about the recovered contraband. Appellant in his statement recorded on 20.11.2006 although admitted that he was having knowledge that Shri Liyakat Khan is dealing in illegal narcotic drugs, but he was having no knowledge about the recovered narcotic drug. In the opinion of this Court merely because co-accused-Shri Farooq Mansuri handed over a polythene bag to Shri Liyakat Khan in the presence of appellant which was concealed by Shri Liyakat Khan in the maize bag and the vehicle in question stands in the name of appellant and he was also occupant of the aforesaid vehicle when recovery was effected, neither conscious possession nor knowledge on his part can be attributed. In the light of the well settled legal position that burden cast upon the accused can be discharged even on the basis of evidence produced on behalf of the prosecution, adverse inference cannot be raised against the appellant even if he did not produce evidence in defence. I am of the considered view that in the overall facts and circumstances of the case, appellant is entitled to get benefit of doubt. 20. Consequently, the criminal appeal is allowed. I am of the considered view that in the overall facts and circumstances of the case, appellant is entitled to get benefit of doubt. 20. Consequently, the criminal appeal is allowed. The impugned judgment and order dated 8.9.2011 passed by the Special Judge, NDPS Cases, Beawar (District Ajmer) in Sessions Case No. 14/2007 is quashed and set aside and accused-appellant is acquitted. 21. As the appellant is presently undergoing sentence, he is ordered to be released forthwith, if not required in any other case.