IMPORTANT POINT
Ownership of a vehicle under the NDPS Act creates a presumption of culpable mental state, which the accused must rebut with substantial evidence.

ORDER :

1. The present petition is filed under the provisions of Section 528 of B.N.S.S. 2023 assailing the order dated 06.11.2017 passed by learned Special Judge (NDPS) District and Sessions Court, Bhawanimandi, Jhalawar in Session Case No. 03/2010.

2. In a nutshell the factual narrative as averred by the learned counsel representing the petitioner is that the petitioner being proprietor of the firm viz. India International Builders (hereinafter referred to as the firm) was engaged in the business of construction ever-since the year 1983. On 13.04.1998 the firm of the petitioner entered into an agreement (Annexure P-3) with M/s SS Constructions (hereinafter referred to as contractors) whereby, the petitioner was entrusted with the work of outsourcing job works to the contractor upon the site of construction. However, the petitioner’s firm suffered a gargantuan loss and in order to settle the debts of the contractor, the petitioner entered into a settlement agreement with the contractor whereby, one car having registration no. DL-4-CH-1763: Maruti Zen (hereinafter referred to as the offending vehicle) inter alia several other machineries, equipment and vehicles was handed over to the contractor in the year 1998. The said settlement agreement was reduced in writing on 07.03.2000 (Annexure P-4).

3. Learned counsel representing the petitioner had fairly conceded with the fact that since the offending vehicle was under a hypothecation lease, the same was not transferred to the contractor and the petitioner had undertaken to provide a NOC to the contractor upon discharge of the same. The controversy qua the instant dispute arose when on 11.10.2009 three persons were arrested with contraband of 1100 gms. of opium from the offending vehicle. Resultantly, on 14.10.2009 the Central Narcotics Bureau (hereinafter referred to as CNB) issued notices qua the petitioner (as the offending vehicle was registered under the petitioner’s name). Sequentially, a criminal case bearing no. 1/2009 was registered against the accused, and learned Special Judge (NDPS Act) District and Sessions Court, Jhalawar, Rajasthan ordered conviction to the accused persons by sentencing 5 months of rigorous imprisonment and a fine of Rs. 10,000/- each.

4. Consecutively, the CNB on 25.05.2017 filed a supplementary complaint before the Special Judge (NDPS Act) District and Session Judge, Bhawanimandi, Rajasthan, ensuing to which the petitioner was summoned for offences under sections 8/25 of NDPS Act, 1985. Nevertheless, the petitioner failed to appear before the concerned authorities on the prescribed date; therefore, vide order dated 06.11.2017 non-bailable warrants were issued qua the petitioner.

5. In this backdrop, learned counsel appearing for the petitioner had placed reliance upon the contents of Annexure P-4 i.e. the settlement agreement in-between the petitioner and the contractor and had submitted that the petitioner had already transferred the offending vehicle to S.S. Construction Company in the year 2000. Withal, invoking the provisions of section 25 read with section 35 of NDPS Act, 1985 and taking cognizance qua the petitioner without any substantial evidence is intrinsically wrong and violative qua the petitioner’s legal rights. It was further contended that the petitioner was already enlarged on anticipatory bail considering the vital aspect of transfer of the said vehicle to latter company. Lastly, learned counsel had urged that in order to derive a better depiction of the ownership of the offending vehicle past decade records qua the insurance and other relevant documents can be procured by the investigating agencies.

6. In support of the contentions made insofar, learned senior counsel had placed reliance upon the ratio encapsulated in Criminal Appeal Nos. 735-755 of 2009 titled as State of Punjab vs. Davinder Pal Singh Bhullar and Others, Minu Kumari and Others vs. State of Bihar and Others, AIR 2006 SC 1937, Prashant Bharti Vs. State of NCT of Delhi,