( 1 ) THE petitioner is praying for the custody of the truck bearing registration No. GJ-1-UU-7587 which has been seized in context with Crime No. 18/98 connected with Police Station Nahargarh, District Mandsaur.

( 2 ) THE prosecution case in brief is that on 25-1-98 Shri N. L. Pandya, ASI of Nahargarh Police Station got the information that poppy husk is likely to be transported from the godown of one Prabhulal resident of Soothi by one Afzal in contravention of the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1986 (hereinafter referred to as the Act for convenience ). Accordingly a Panchnama was prepared indicating that in the attempt of obtaining the search-warrant, the offenders were likely to escape and it would not be possible to obtain the warrant. After that, the Panchanama was drawn and such difficulty was expressed. The panch-witnesses were taken by the raiding party along with it. The party proceeded to effect the raid. While attempting to trace the said truck, the members of the raiding party learnt that the said poppy husk was taken through the truck mentioned above towards Mandsaur side. The said truck was, thereafter, traced and it was found in the deserted condition near Panpur village. No- body was present, in the said truck and when the said truck was searched, it was noticed by the members of the raiding party that some bags containing lentils were found to have been stored in the said truck at the upper floor. Beneath it, poppy husk was stored in the said truck in the concealed manner. The said poppy husk was seized under the Panchnama in the presence of the Panch-witnesses. The said truck was also seized under the allegation that it was used in contravention of the provisions of the NDPS Act for transporting the said poppy husk illegally.

( 3 ) AN application was moved by the owner of the said truck through the General Attorney. After hearing the prosecution, the learned Special Judge dismissed the application of the petitioner for getting the custody of the truck in question and that order is being assailed by the present revision petition.

( 4 ) SHRI Amit Agrawal appearing for the petitioner submitted that the owner of the truck is resident of Ahmedabad and he was not knowing as to why this truck was being seized. He further submitted that no narcotic drug has been proved to have been transported by that truck by the prosecution, and therefore, the said truck is not liable to be confiscated much less detained in the custody of the police. He further submitted that the said truck is a valuable property and if it is permitted to be detained in the custody of the police with exposed condition in rains etc. , the owner of the truck would be put to lot of loss and hardship. Shri A. Saleem, learned Panel Lawyer appearing for the Respondent-State submitted that the said truck had been involved in the illegal transport of poppy husk in contravention of provisions of the NDPS Act, therefore, the said truck needs to be kept in the custody of the police till the trial is over. He submitted that this petition be dismissed.

( 5 ) SECTION 35 of the NDPS Act provides in sub-section (1) that "in any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. " The explanation provided to that sub-section indicates "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe a fact. Sub-section (2) of Section 35 provides that "for the purpose of this section, a fact is said to be proved only when the Court believes it to existbeyond reasonable doubt and not merely when its existence is establishedby a preponderance of probability. " These two sentences have to be understood properly and