JUDGMENT : ROBIN PHUKAN, J. 1. Legality, propriety and correctness of order dated 04.08.2021, passed by the learned Special Judge (NDPS), Bomdila in NDPS Case No. 05/2021, under Section 20 (B) of NDPS Act, is challenged in this revision petition filed by Shri Yeshi Tsewang. 2. It is to be mentioned here that vide the impugned order, the learned Court below has held that a prima-facie case against the owner of Hyundai Eon Car-Shri Yeshi Tsewang S/o Late Bom Dorji R/o Liphakpu village, PO/PS Kalaktang, West Kameng District, Arunachal Pradesh is made out and accordingly, invoking the provision of section 319 Cr.P.C. against him, framed charge against under Section 20 (C) of the NDPS, Act. 3. Heard Mr. D. Panging, the learned counsel for the petitioner and also heard Ms. T. Jini, learned Addl. P.P. for the State of Arunachal Pradesh. 4. The factual background, leading to filing of this revision petition, is adumbrated herein-below: “The petitioner Shri Yeshi Tsewang is a resident of Liphakpu village, under Kalaktang Police Station in West Kameng District. By profession he is a cultivator. In the month of March, 2019 with the help of his cousin brother, namely, Genden Tsering, he had purchased one Hyundai Eon Car bearing Registration No. AS-O1BE-4569 from Dhekiajuli, Tezpur in Assam for his daily use, especially to drop and pick up his children at school at Kalaktang which is located at a distance of about 20 Km from his village. Since the petitioner is not has not acquired the skill of driving, he engaged one person known as ‘Bhaity’ of Kalaktang on temporary basis to drop and pick up his children from Kalaktang, w.e.f. 17.05.2019, but he did not enquire the actual name and address of the said driver. On 11.05.2019, he went to his cultivation field along with his wife and on returning home he found his children already returned from school, but he did not find the car and the driver. Though, he started searching him but failed to find him out. Then on 12.05.2019, one of his relative informed him that his car has been caught by SSB personnel with Cannabis (Ganja) in between Warrangpam-Dengzi road and the vehicle has been seized by police of Kalaktang Police Station. Though, he started searching him but failed to find him out. Then on 12.05.2019, one of his relative informed him that his car has been caught by SSB personnel with Cannabis (Ganja) in between Warrangpam-Dengzi road and the vehicle has been seized by police of Kalaktang Police Station. He then went to Kalaktang Police Station and found the vehicle there and came to know that on the night of 11.05.2019, while the SSB personnel stop the vehicle, on the Warangpam-Dengzi road, then the driver fled away to the jungle and they found in the car 6 bags of suspected cannabis weighing around 129 Kgs. Thereafter, Police recorded his statement and subsequently, vehicle was released in his zimma. After the incident, his driver had never returned to his house. He could not contact with him in telephone also. He also came to know that the SSB personnel, on that night, caught one Tata Sumo Vehicle also with cannabis and apprehended the driver. And in connection with the same, the Kalaktang P.S. Case No. 08/2019, under Section 20 (B) of the NDPS Act has been registered. After investigation, Police submitted Charge-Sheet, No. 07/2020, on 23.01.2020 against the driver of Tata Sumo vehicle, namely, Chaijang Kharma to stand trial in the court under Section 20 (B) of NDPS Act. The I.O. in the said case cited the petitioner as prosecution witness No. 5. Thereafter, trial commenced before the learned Special Judge, Bomdila and during trial of the case, the prosecution side has examined 4 witnesses, namely, Shri Prakash Gautam, Shri Samiran Das, Shri Lalphiengruol and Shri Chandan Gogoi, all are SSB personnel, and after perusing the deposition, the learned Court below vide order dated 28.04.2021 observed that there is a prima-facie case against the owner of the Hyundai Eon Car and accordingly, issued notice to him and then he challenged the order of the learned Special Judge, Bomdila, dated 28.04.2021, before this Court by filing a Criminal Petition No. 33/2021. Thereafter, vide order dated 09.08.2021, the learned Special Judge, Bomdila by invoking the provision under Section 319 of the Cr.P.C. and having drawn presumption of possession against the petitioner under Section 54 of the NDPS Act, framed charge against him under Section 20 (C) of the NDPS, Act.” 5. Thereafter, vide order dated 09.08.2021, the learned Special Judge, Bomdila by invoking the provision under Section 319 of the Cr.P.C. and having drawn presumption of possession against the petitioner under Section 54 of the NDPS Act, framed charge against him under Section 20 (C) of the NDPS, Act.” 5. Being aggrieved, the petitioner approached this Court by filing this revision petition on the ground, inter-alia, amongst others: (i) That, on receipt of FIR on 12.05.2019 from Inspector Prakash Gautam of SSB, the Kalaktang Police registered a case and carried out investigation and about carrying of cannabis in the vehicle of the petitioner and did not find involvement of the petitioner to array him as accused, but cited him as prosecution witness. (ii) That, none of the prosecution witness examined by the prosecution has deposed anything even to remotely suggest that the petitioner is involved in the offence and as such, invoking of jurisdiction under Section 319 Cr.P.C. and framing charge against the accused petitioner is illegal. (iii) That, the evidence contemplated under Section 319 Cr.P.C. should be of such a nature, which will be sufficient to convict a person being summoned but in spite of absence of any whisper about involvement of the petitioner charge has been framed against him. (iv) That, the spirit of section 319 of the Cr.P.C. has not been followed by the learned court below and the discretion has not been applied in a proper way and as such, the action of the learned Court below is arbitrary and based upon imagination. (v) That, drawing of presumption under Section 54 of the NDPS Act as regards possession of Hyundai Eon Car against the petitioner is illegal as the petitioner was not accused at that point of time and the learned Court below applied the provision wrongly in this case and as such, the impugned order dated 04.08.2021, is unsustainable in law and the same is liable to be interfered with. 6. Mr. D. Panging, the learned counsel for the petitioner has submitted that though 4 prosecution witnesses were examined by the learned Court below, yet there was no any whisper of word against the petitioner to remotely suggest involvement of the petitioner in the offence. As such, invoking section 319 of the Cr.P.C. here in this case is absolutely illegal and arbitrary. Mr. As such, invoking section 319 of the Cr.P.C. here in this case is absolutely illegal and arbitrary. Mr. Panging has referred one case law in Kailash vs. State of Rajasthan and Another, (2008) 14 SCC 51 , in support of his submission. 7. Mr. Panging further submits that Kalaktang Police station has carried out the investigation and having found no materials against the petitioner, cited him as prosecution witness instead of making him an accused, and since the prosecution witnesses in their evidence before the Court has not whispered any word against him, then framing of charge against him under Section 20 (c) of the NDPS Act invoking the provision of Section 319 Cr.P.C. is unsustainable in law. It is further submitted that the learned Court below has wrongly drawn presumption at the time of framing charge against the petitioner and referring to Section 54 of the NDPS Act. It is further submitted that when the ld. Court below has drawn presumption against the petitioner, then, he was not an accused in the said case, but was a prosecution witness. Therefore, Mr. Panging, the learned counsel for the petitioner contended to allow this revision petition by setting aside the impugned order of the learned Court below. 8. Whereas, Ms. T. Jini, the learned Addl. PP has submitted that the petitioner is the owner of the Hyundai Eon Car bearing Registration No. ASO1BE- 4569 and the SSB personnel have recovered as many as 120 Kgs of cannabis from the Hyundai Eon Car on the date of the occurrence. It is further submitted that the learned Court below has rightly drawn the presumption against the petitioner and framed charge against him and for invoking the jurisdiction under Section 319 Cr.P.C. only prima-facie materials, as required to frame charge, is necessary. Ms. Jini has further submitted that as prima-facie material, including presumptive evidence are also there against the accused, as such the impugned order suffered from no infirmity and therefore contended to dismiss the petition. She also referred one case law, Hardeep Singh and Others vs. State of Punjab and Others, (2014) 3 SCC 92 , in support of her submissions. 9. Having heard the submission of learned advocates of both sides, we have carefully gone through the records of the learned Court below. 10. She also referred one case law, Hardeep Singh and Others vs. State of Punjab and Others, (2014) 3 SCC 92 , in support of her submissions. 9. Having heard the submission of learned advocates of both sides, we have carefully gone through the records of the learned Court below. 10. For better appreciation and understanding of the dispute in question, it is found necessary to reproduced the relevant paragraphs of the impugned order dated 04.08.2021, which read as under:- “I have carefully perused the evidences of PW-1 to 4 which revealed that they have seized 6 bags, weighing 129 Kgs of suspected cannabis and the driver of the Eon car escaped from the PO. Mr. Yeshi Tsewang has been examined by the Police under Section 161 Cr.P.C. during which he stated that the vehicle was driven by his driver known as ‘Bhaity’ however, he has not disclose the name and address of driver for further investigation of the case. Therefore, I am of the view that the Eon car seized by police and taken over by the owner Mr. Yeshi Tsewang was under his possession at the time of incident in terms of section 54 of NDPS Act. It is unbelievable to have been engaged a person as driver without having name and address. The statement recorded under Section 161 Cr.P.C. by the Police without having any further scope of investigation cannot be admitted by this Court. A person must able to say the proper person driving the vehicle failing with the law of presumption shall be drawn against the person for possession of the contrabands.” In view of the above, I am of the opinion that after perusal of the evidence of PW-1 to 4, it is observed that there is prima-facie case against the owner of the Hyundai Eon Car. Accordingly, I am inclined to frame charge against the petitioner applying the provision under Section 319 of the Cr.P.C.” 11. Accordingly, I am inclined to frame charge against the petitioner applying the provision under Section 319 of the Cr.P.C.” 11. A bare perusal of the impugned order reveals that while considering the material to find out a prima-facie case against the petitioner, the learned Court below has also considered his statement under Section 161 Cr.P.C. recorded by the I.O. during investigation and the learned Court below also presumed in terms of Section of 54 of NDPS Act that while the Eon Car was caught with the cannabis by SSB personnel on the night of 11.05.2019, on the Warangpam-Dengzi road, the same was under the possession of the petitioner. 12. Before, we dwell upon the facts and circumstances of the case in hand let us refer to some of the case laws which would help us in dealing with the present situation with greater precision. Hon’ble Supreme Court in Vikas vs. State of Rajasthan in Criminal Appeal No. 1190 of 2013 and SLP (Crl.) No. 6081 of 2013, while dealing with the provisions of 319 Cr.P.C. held as under:- “A Perusal of Section 319 of the Cr.P.C. would clearly indicate that on the objective satisfaction of the court a person may be ‘arrested’ or ‘summoned’ as the circumstances of the case may require if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons. The court should exercise judicial discretion on a consideration of the totality of the facts and circumstances of a given case and in a manner where proper procedures are followed that are fundamental to the right of fair trial of the accused.” 13. In Hardeep Singh vs. State of Punjab and Others, (2014) 3 SCC 92 , the Hon’ble Supreme Court while dealing with the degree of satisfaction required for invoking power under Section 319 Cr.P.C. held that:- “Section 319 (1) of the Cr.P.C. empower the Court to proceed against other persons who appear to be guilty of offence, through not an accused before the Court. The word ‘appear’ means clear to the comprehension or a phrase near to, if not synonymous with proved. It imparts a lesser degree of probability than proof.” It is further held that: The power of Section 319 Cr.P.C. is a discretionary and extra ordinary power. The word ‘appear’ means clear to the comprehension or a phrase near to, if not synonymous with proved. It imparts a lesser degree of probability than proof.” It is further held that: The power of Section 319 Cr.P.C. is a discretionary and extra ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner.” It is also held that: Only a prima-facie case is to be exercised from the evidence led before the Court not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima-facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes un-rebutted, would lead to conviction. In the absence of such satisfaction, the Court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not “for which such person could be convicted.” There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused. 14. Now, averting to the facts and circumstances of the case in hand, we find that the Investigating Officer did not find any materials against the petitioner after thorough investigation. Therefore, the I.O. has cited him as prosecution witness instead of arraying him as accused here in this case. There is also no material to show that the alleged driver, namely, Bhaity carried the contraband articles with the knowledge of the petitioner. In Section 25 of the Act, the word used is knowingly. Therefore, the I.O. has cited him as prosecution witness instead of arraying him as accused here in this case. There is also no material to show that the alleged driver, namely, Bhaity carried the contraband articles with the knowledge of the petitioner. In Section 25 of the Act, the word used is knowingly. The said provision has been interpreted by the Hon’ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and Others (supra). According to the Hon’ble Supreme Court, the prosecution has to reveal the basic fact to show that the owner had knowingly permitted to other person to use the vehicle, in question, for the purpose of committing the offence. In the case in hand the element of knowingly permitted is conspicuously missing here in this case. 15. It is to be mentioned here that at the time of hearing a pointed question was asked to the ld. Counsel of both sides:- Whether the 4 witnesses were examined by the prosecution side has uttered any word implicating the petitioner with the offence and if so is it sufficient to invoke the provision of section 319 Cr.P.C. to charge him under section 20(c) of the NDPS Act? 16. While the learned counsel for the petitioner has firmly submitted that no evidence is forthcoming against the petitioner from the evidence of four prosecution witnesses, the learned Addl. PP has also submitted that the four prosecution witnesses, though, did not say anything directly against the petitioner, yet it comes out from their evidence that they found 129 Kg of cannabis in the Eon car and the driver of the same fled away leaving the car at the place of occurrence. It is further submitted that the said car belongs to the petitioner, who took zimma of the same from the police station. 17. It is to be mentioned here the ld. Special Judge, while holding that a prima-facie case is made out against the petitioner had considered the evidence of the four prosecution witnesses, namely Shri Prakash Gautam, Shri Samiran Das, Shri Lalphiengruol and Shri Chandan Gogoi, all are SSB personnel. A cursory reading of the same reveals that nowhere they have stated anything against the petitioner, except however that they found 129 kg of cannabis in the Eon car. They have also never stated anything as to who was the owner of the Eon car. 18. A cursory reading of the same reveals that nowhere they have stated anything against the petitioner, except however that they found 129 kg of cannabis in the Eon car. They have also never stated anything as to who was the owner of the Eon car. 18. It is, however, not in dispute that the petitioner is the owner of the Eon car, who had engaged one driver namely ‘Bhaity’ as driver of the same. On the relevant date his driver, having picked up the children of the petitioner gone out with the car and never returned that night. On the next day the petitioner came to know from one of his relative that his car has been caught by SSB personnel with Cannabis (Ganja) in between Warrangpam-Dengzi road and the vehicle has been seized by police of Kalaktang Police Station and the driver has fled away. It also appears that the petitioner then went to the Kalaktang Police Station and found his car there and police recorded his statement and released the vehicle in his zimma. The Investigating Officer, after investigation of the case laid charge sheet against the driver of the Tata Sumo car and cited the petitioner as prosecution witness instead of making him an accused. 19. Thus, it transpires from the above discussion that there was practically no evidence against the petitioner after examination of four prosecution witnesses, even to make out a prima-facie case, not to speak of much stronger evidence than mere probability to show his complicity, as held by the Hon’ble Supreme Court in the case of Hardeep Singh (supra). Merely, because he is the owner of the Eon car, and in conspicuous absence of materials to show that he had ‘knowingly’ permitted his driver ‘Bhaity’ to use the car in question, for carrying cannabis, to the considered opinion of this court, is not sufficient to invoke the discretionary jurisdiction under section 319 Cr.P.C. The test, which has to be applied, is one which is more than prima-facie case. It has also been held in the case of Hardeep Singh (supra) that only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner. 20. It has also been held in the case of Hardeep Singh (supra) that only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner. 20. It is settled that the provision under Section 319 Cr.P.C. is to be invoked sparingly ensuring that the principles of rule of law and the basic tenets of criminal law jurisprudence are not vitiated. The ld. Counsel for the petitioner seems to be absolutely right in his submission that invoking the provision of Section 319 Cr.P.C against the petitioner is unsustainable in law. The ratio laid down in the case law Kailash vs. State of Rajasthan and Another (supra) also supported his submission. The ld. Counsel for the petitioner has also rightly submitted that provision of section 54 of the NDPS Act can be applied in case of the accused only. Section 54 of the NDPS Act deals with presumption from possession of illicit articles. It provides that: In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of: (a) any narcotic drug or psychotropic substance or controlled substance. (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated. (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance. (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily. In the case in hand, when the ld. Special Judge has invoked the provision of section 54 NDPS Act to frame charge against the petitioner, he was only a witness not an accused. 21. It is needless to mention here that, the criminal law also derives its source and sustenance from the Constitution. In the case in hand, when the ld. Special Judge has invoked the provision of section 54 NDPS Act to frame charge against the petitioner, he was only a witness not an accused. 21. It is needless to mention here that, the criminal law also derives its source and sustenance from the Constitution. The Constitution, on one hand, guarantees the Right to Life and Liberty to its citizens under Article 21 and on the other hand imposes a duty and an obligation on the Judges while discharging their judicial function to protect and promote the liberty of the citizens. Liberty is the natural and inalienable right of every human being and it is proclaimed by Article 21 of the Constitution that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law and as such, framing of charge against the petitioner, who is cited by the I.O. as prosecution witness and against whom, the four prosecution witnesses have not whispered any word, interferes with the right to life and personal liberty. 22. Having tested the impugned order, dated 04.08.2021, passed by the learned Special Judge (NDPS), Bomdila in the light of the principles of law, laid down by the Hon’ble Supreme Court in the case laws discussed above this Court is of the considered opinion that the same failed to withstand the test legality, propriety and correctness. Accordingly, the impugned order dated 04.08.2021, passed by the learned Special Judge (NDPS), Bomdila stands set aside. This revision petition is accordingly disposed of.