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2020 DIGILAW 302 (RAJ)

State Of Rajasthan v. Manak

2020-01-31

VINIT KUMAR MATHUR

body2020
JUDGMENT Vinit Kumar Mathur, J. - The present appeal under Section 378(iii) & (i) has been filed by the appellant-State seeking leave to appeal against the judgment dated 13/09/2019 passed by learned Special Judge, (N.D.P.S. Act Cases) (Additional Sessions Judge, Jaitaran, District Pali) in Sessions Case No. 62/2016, whereby the accused respondent was acquitted for the offence under Section 8/15 read with Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The brief facts of the case are that on 15/06/2011, an information was received that one Om Prakash was carrying opium on the Bajaj Discover Motorcycle bearing registration No.R.J.22-S.J.-7589 and was driving/moving towards Karmavas Maliyan from Mundawa. On this information, the Interception Party was sent to the spot and at around 4.00 p.m., the motorcycle above stated was stopped. On being checked, it was found that the information was correct and while the rider of the motorcycle tried to run away, he was nabbed and on being asked, he disclosed his name as Om Prakash S/o Ghewarji. After making the compliance of the mandatory provisions, the motorcycle was checked and a bag was found containing the contraband. After checking the contents of the bag, it was found to be opium which weighed to be one kg. After taking the samples, the police seized the contraband. The subject motor cycle was stated to be registered in the name of the accused respondent. He is the real brother of Om Prakash who was carrying the recovered contraband opium on the motorcycle. The allegation against the respondent was that since he is the real brother of Om Prakash, he was having the knowledge and information that his motorcycle was being used for transporting the contraband by Om Prakash. 3. Learned trial Court after evaluating the evidence came to the conclusion that merely because the present respondent Manak was the real brother of Om Prakash and was the owner of the motorcycle is not sufficient to bring him under the net of Section 8/25 of the NDPS Act. Learned trial Court thus acquitted the respondent vide its judgment dated 13/09/2019. The relevant observations made in para 43 of the judgment are reproduced as under :- 4. Learned trial Court thus acquitted the respondent vide its judgment dated 13/09/2019. The relevant observations made in para 43 of the judgment are reproduced as under :- 4. Learned public prosecutor submits that since the respondent was the real brother of Om Prakash and the registered owner of the motorcycle, he had complete knowledge that the contraband recovered was being transported on his motorcycle by his brother and, therefore, he is liable to be booked under Section 8/25 of the N.D.P.S. Act and therefore, learned trial Court has erred while recording the finding that there was no knowledge to the present respondent that his real brother was carrying the subject contraband on his motorcycle. 5. I have considered the submissions and gone through the judgment dated 13/09/2019. 6. It is an admitted fact that Om Prakash is the real brother of the present respondent Manak. It is also admitted that motorcycle which was being used by Om prakash for carrying the contraband belonged to the present respondent. However, on going through the entire judgment, there is no evidence which shows or suggests that it was within the knowledge of the present respondent that Om prakash was carrying the contraband on his motorcycle. Under Section 25 of the N.D.P.S. Act, it is mandated that prior knowledge is necessary for bringing the accused into the net of Section 25 of the N.D.P.S. Act. For brevity, Section 25 of the N.D.P.S. Act is reproduced below :- "25. Punishment for allowing premises, etc., to be used for commission of an offence.--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 this Act, shall be punishable with the punishment provided for that offence ........." 7. Considering the findings recorded by learned trial Court, I am of the view that there is no material evidence on record which shows that the respondent was having any knowledge that his motorcycle was being utilized for carrying the contraband recovered from his real brother. Merely because the respondent is the real brother of Om Prakash and he is the registered owner of the motorcycle is not sufficient to bring home the allegations levelled against him under Section 25 of the N.D.P.S. Act. Merely because the respondent is the real brother of Om Prakash and he is the registered owner of the motorcycle is not sufficient to bring home the allegations levelled against him under Section 25 of the N.D.P.S. Act. Accordingly, the judgment dated 13/09/2019 passed by learned trial Court does not call for any interference by this Court. 8. In view of the above discussion, the criminal leave to appeal preferred by the appellant State lacks merit and, therefore, the same is hereby dismissed.