IMPORTANT POINT
Seizure of contraband from Truck – Unless vehicle is used with knowledge and consent of owner thereof, which is sine qua non for applicability of Section 25 of NDPS Act, conviction thereunder cannot be legally sustained.

JUDGMENT :

(Rajesh Bindal, J.)

1. The Appellant-Harbhajan Singh was convicted vide judgment dated 18.05.2005 passed by the Trial Court under Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced to undergo imprisonment for a period of 10 years. In appeal, the conviction and sentence of the Appellant was upheld by the High Court vide order dated 14.05.2010. The orders are under challenge before this Court.

2. Briefly, the facts of the case are that the Appellant was owner of the truck bearing registration no. PAT/2029. It turned turtle near Hanuman Mandir, Hisar Road, Village Agroha on 15.05.2000 at 9.00 P.M. First Information Report (FIR) No.68 was registered at 4.25 P.M. on 16.05.2000 on the information furnished by the police party on patrol duty. As per the information furnished to the police party by two witnesses Ram Sarup (PW-6) and Naresh Kumar (PW-10) the accident occurred on 15.05.2000 at about 9.00 P.M. after the truck hit the divider. The driver and cleaner came out of the truck and on enquiry by the said witnesses, they informed their names as Joginder Singh s/o Jang Singh and Gurmail Singh s/o Nachhattar Singh. They also disclosed the name of the owner of the truck as Harbhajan Singh. The driver and the cleaner then went away on the pretext of calling the owner but never returned. Police, on suspicion that the bags loaded in the truck were containing some contraband substance, unloaded them and took them into custody. Samples were drawn and sent for testing. After investigation, chargesheet was filed against Joginder Singh, Gurmail Singh and the Appellant. The Trial Court acquitted Joginder Singh and Gurmail Singh as two of the witnesses who according to prosecution had informed the police party about the names of the driver and cleaner of the truck were declared hostile. However, the Appellant who was the registered owner of the truck was convicted under Section 25 of the NDPS and the conviction was upheld by the High Court.

3. Brief argument raised by the learned counsel for the appellant is that Section 25 of the NDPS Act provides that an owner of the vehicle could be convicted only if he knowingly permits use of his vehicle for commission of any offence. No such case was made out by the prosecution. Even the presumption as provided for in Section 35 of the NDPS Act cannot be raised as the prosecution had failed to discharge its initial burden of proving the foundational facts. In the statement of the Appellant as recorded under Section 313 of the Criminal Procedure Code, 1973, it was submitted that he had given the truck on hire to one Kashmir Singh s/o Hoshiyar Singh resident of Dalel Singhwala for carrying sand. The Appellant was not arrested from the spot. The driver and cleaner of the truck have already been acquitted and the State has not filed any appeal challenging their acquittal. In support of his arguments, learned counsel for the Appellant has relied upon the judgments of this Court in Balwinder Singh v. Asstt. Commr., Customs and Central Excise, (2005) 4 SCC 146, State by Inspector of Police, Narcotic Intelligence Bureau, Madurai, Tamil Nadu v. Rajangam, (2010) 15 SCC 369, Bhola Singh v. State of Punjab (2011) 11 SCC 653 and Gangadhar alias Gangaram v. State of Madhya Pradesh, (2020) 9 SCC 202.

4. On the other hand, learned counsel for the State submitted that the Appellant has failed to prove its case that the truck was not being used for any illegal activities. The owner of the truck is vicariously liable. Though stand was taken by him that the truck was given for carrying sand however no such evidence was led by him to prove his plea. Presumption goes against him.

5. Heard learned counsel for the parties and perused the relevant referred record.

6. The basic facts of the case as have been noticed above are not in dispute. The Appellant who is the registered owner of the truck was not arrested from the spot. A case was set up by