IMPORTANT POINT
The duty of the Investigating Officer to establish the owner's knowledge or consent for the vehicle to be used in the commission of the offence under Section 25 of the NDPS Act, and the limitations of statutory presumptions under Section 35 of the NDPS Act.

ORDER :

1. This second application for bail has been preferred by the applicant under Section 439 of the Cr.P.C. in connection with FIR No.100/2023, registered at Police Station Nimbaheda, District Chittorgarh for the offences under Sections 8 and 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’).

2. The first bail application being (S.B. Criminal Miscellaneous Bail Application No. 15616/2023) filed on behalf of the applicant was dismissed as withdrawn on 18.12.2023, with a liberty to file a fresh after charge-sheet is filed.

3. A charge-sheet has been filed against the applicant implicating him of the offences under Sections 8/15, 25 and 29 of the NDPS Act.

4. Mr. Bhanwar Singh, learned counsel for the applicant has raised two arguments in essence. Firstly, that one Ladu Ram has fraudulently got the signatures of present applicant on the documents and got the vehicle registered in applicant’s name and therefore, the applicant cannot be inculpated for the offences under Sections 8/25 of the NDPS Act, as he is not an owner of the vehicle in the eye of law.

5. Secondly, that the Investigating Officer has not collected any evidence in the form of call details or otherwise to establish that the truck in question was being used or allowed to be used for transportation of contraband substance by the present applicant, who is alleged to be the owner of the vehicle.

6. Learned Public Prosecutor submitted that the argument advanced by learned counsel for the applicant that he has been cheated and wrongly made a registered owner of the vehicle is hardly of any relevance. He added that such plea can be considered only at the time of trial and not at this stage.

7. Learned Public Prosecutor and Investigating Officer were, however, not in a position to satisfy the Court as to how and on the basis of what evidence or material it can be said that the applicant knowingly permitted the offending vehicle to be used for the commission of offence and that the mandate of Section 25 of the NDPS Act is met.

8. Heard learned counsel for the parties and perused the material available on record.

9. So far as the first argument advanced by learned counsel for the applicant that the applicant has been deluded by one Ladu Ram to sign certain papers on the basis whereof the applicant has been registered as owner of the vehicle in question is concerned, the same is an argument to be considered during trial. It can be a ground of defence of the applicant which can be raised at the time of recording of his statement under Section 313 of the Cr.P.C. but at the stage of considering the bail application, the same cannot be gone into.

10. At this stage, even if the applicant is presumed to be the registered owner of the vehicle, the Court cannot lose sight of the fact that the Investigating Officer has not brought on record any connecting evidence on the basis of which it can be said that the applicant being registered owner of the vehicle had himself transported or knowingly permitted the contraband substance to be transported in his vehicle, thereby attracting provisions of Section 25 of the NDPS Act.

11. Section 25 of the NDPS Act needs to be looked into in this regard, which reads thus:-

“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.”

12. The use of expression “knowingly permits it to be used for” implies that, in case a house, room or vehicle etc., has been used in the commission of offence punishable under the NDPS Act, the owner by virtue of being an owner in absence of evidence of his knowledge or consent; express, implied or tacit, cannot be indicted for the offence under Section 25 of the NDPS Act.

13. It is to be noted that Section 25 o