BHOLA SINGHversusSTATE OF PUNJAB

                          [2011] 2 S.C.R. 642

,A .                        BHOLA SINGH
                                  v.
                         STATE OF PUNJAB
                  (Criminal Appeal No. 448 of 2006)
                          FEBRUARY 8, 2011
 B
        [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                       PRASAD, JJ.]

          Narcotic Drugs and Psychotropic Substances Act, 1985:
 C ss.25, 35 - Applicability of - Contraband goods recovered
   from the truck co-owned by the appellant - While purchasing
   the truck, the appellant had given his residential address in
   Rajasthan whereas he was resident of Haryana - High Court
   drew presumption against the appellant u/s. 35 to hold that by
 D giving a fake address, his culpability was writ large on the facts
   of the case - Conviction of appellant uslss.25 and 35 - Held:
   s.25 would not be applicable as there was no evidence to
   indicate that the appellant had knowingly permitted the use
   of the vehicle for any improper purpose - s.35 also
 E presupposes that the culpable mental state of an accused has
   to b13 proved as a fact beyond reasonable doubt and not
   merely when its existence is established by a preponderance
   of probabilities - Burden to prove that the appellant had
   knowledge that the vehicle he owned was being used for
 F transporting narcotics lay on the prosecution and it is only
   after the evidence proved beyond reasonable doubt, that he
   had knowledge, would presumption uls. 35 arise - In the
   absence of any evidence with regard to the mental state of
   the appellant, no presumption uls.35 can be drawn - The only
   evidence which the prosecution sought to rely on was the
 G appellant's conduct in giving his residential address in
   Rajasthan although he was a resident of Haryana while
   registering the offending truck cannot fasten him, with the
   knowledge of its misuse by the driver and others - Judgments

 H                                642
        BHOLA SINGH v. STATE OF PUNJAB                    643


of the courts below set aside and acquittal ordered.            A

    Noor Aga vs. State of Punjab and Anr. (2008) 16 SCC
417 - relied on.

    Case law reference:
                                                                B
    (2008) 16 sec 417        relied on               Para 10

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 448 of 2006.

    From the Judgment & Order dated 5.7.2004 of the High        C
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 292-DB, 579-DB, and 580-08 of 2003.

    Triloki Nath Razdan, Smirti Razdan, P.P.N. Razdan for the
Appellant.
                                                                D
    Kuldeep Singh, K.K. Pandey, H.S. Sandhu for the
Respondent.

    The following order of the Court was delivered
                                                                E
                         ORDER

    We have heard the learned counsel for the State.

     This appeal by way of special leave arises out of the
following facts:                                                F

      On 22nd November, 1999 PW.6-Sub-lnspector Manohar
Singh along with other police officials was present on the bridge
over the seepage drain near village Akkanwali. One Janak Raj,
was also along with them. At about 7.00 a.m. Truck No. RJ-31 G
G-0859 driven by accused Bansi Lal came from the side of
village Akkanwali. The truck was stopped on the signal of Sub-
Inspector Manohar Singh and on enquiry the Driver disclosed
his name as Bansi Lal son of Neki Ram, resident of Mira Khan

                                                                H
    644     SUPREME COURT REPORTS                 [2011] 2 S.C.R.


A Ki Dhani, Village Maur Bingar, Police Station, Fatehabad.
  Three other persons namely Nirbhai Singh, Gora Singh and
  Gurmit Singh were found sitting on the bags which were lying
  in the body of the truck. It also came to the notice of the Sub-
  Inspector that Gora Singh and Gurmit Singh were the brothers-
B in-law of Nirbhai Singh.

       An offer under Section 50 of the Narcotic Drugs and
  Psychotropic Substances Act ( hereinafter called the 'Act') was
  made to the accused. They opted to be searched in the
C presence of a Gazetted Officer. DSP Baljit Singh (PW.1) was
  then requested to reach the spot. The truck was thereafter
  searched and 16 bags of poppy husk each containing 30 kg.
  were found in the truck. Samples etc. were taken and sent to
  the laboratory for analysis which opined that the contraband was
  indeed poppy husk. It also transpired during the investigation
D that Bhola Singh, the appellant before us, was a co-owner of
  the truck. He along with others was accordingly charged for an
  offence punishable under Section 15 of the Act whereas Bhola
  Singh and Bansi Lal were also charged under Section 25
  thereof. The Trial Court on a consideration of the evidence
E convicted the accused and sentenced them to undergo 12 years
  RI each and a fine of rupees one lakh and in default of payment,
  RI for two years.

        The matter was thereafter taken in appeal by the accused.
F   The High Court dismissed the appeal and it is the admitted
    case that the SLP filed by the accused other than the appellant
    herein has also been dismissed by this Court.
       We have gone through the judgment of the Trial Court and
  High Court insofar as Bhola Singh is concerned. We see that
G he was not present at the spot and the allegation against him
  is that he was the co-owner of the truck and that while
  purchasing the truck he had given his residential address in
  Rajasthan whereas he was a resident of Haryana. The High
  Court has accordingly drawn a presumption under Section 35
H
         BHOLA SINGH v. STATE OF PUNJAB                     645

of the Act against him to hold that by giving a fake arrest his     A
culpability was writ large on the facts of the case.
      Mr. T.N. Razdan, the learned counsel for the appellant has
raised only one argument before us during the course of the
hearing. He has pointed out that there was no evidence that B
the appellant had been involved in the smuggling of contraband
and even if the prosecution story that he was the co-owner of
the truck and had given a wrong address while purchasing the
truck was correct, these factors could not fasten him with any
liability under Sections 15 and 25 of the Act. He has also
submitted that the "culpable mental state" and the conditions C
for the applicability of Section 35 of the Act were not made out.

     Mr. Kuldip Singh, the learned counsel for the State of
Punjab, has however supported the judgment of the Trial Court.
We however repeatedly asked the learned counsel as to D
whether there was any evidence as to the involvement of the
appellant, other than that he was the co-owner of the truck and
that he had given a wrong address. The learned counsel fairly
stated that there was no other evidence against the appellant.
                                                                    E
     We have considered the arguments advanced by the
learned counsel. We see that Section 25 of the Act would not
be applicable in the present case as there is no evidence to
indicate that Bhola Singh the appellant had either knowingly
permitted the use of the vehicle for any improper purpose. The' ·
sine qua non for the applicability of Section 25 of the Act is thus F
not made out. The High Court has however drawn a
presumption against the appellant under Section 35 of the Act. .
This provision is reproduced below:
           "35. Presumption of culpable mental state:•              G
    (1) 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 u·e fact that he had      H
    646       SUPREME COURT REPORTS                  [2011] 2 S.C.R. ·


A         no such mental state with respect to the act charged as
          an offence in that prosecution.
          Explanation:-ln this section "culpable mental state" includes
          intention, motive knowledge of a fact and belief in, or
          reason to believe, a fact.
B
          (2) For the purpose of this section, a fact is said to be
          proved only when the court believes it to exist beyond a
          reasonable doubt and not merely when its existence is
          established by a preponderance of probability.:
c
        While dealing with the question of possession in terms of
  Section 54 of the Act and the presumption raised under Section
  35, this Court in Noor Aga vs. State of Punjab and Anr. (2008)
  16 sec 417 while upholding the constitutional validity of
0 Section 35 observed that as this Section imposed a heavy
  reverse burden on an accused, the condition for the applicability
  of this and other related sections would have to be spelt out
  on facts and it was only after the prosecution had discharged
  the initial burden to prove the foundational facts that Section
E 35 would come in to play. Applying the facts of the present case
  to the cited one, it is apparent that the initial burden to prove
  that the appellant had the knowledge that the vehicle he owned
  was being used for transporting Narcotics still lay on the
  prosecution, as would be clear from the word "knowingly", and
F it was only after the evidence proved beyond reasonable doubt
  that he had the knowledge would the presumption under
  Section 35 arise. Section 35 also presupposes that the
  culpable mental state of an accused has to be proved as a fact
  beyond reasonable doubt and not merely when its existence
  is established by a preponderance of probabilities. We are of
G the opinion that in the absence of any evidence with regard to
  the mental state of the appellant no presumption under Section
  35 can be drawn. The only evidence which the prosecution
  seeks to rely on is the appellant's conduct in giving his
  residential address in Rajasthan although he was a resident of
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        BHOLA SINGH v. STATE OF PUNJAB                   647


Fatehabad in Haryana while registering the offending truck A
cannot by any stretch of imagination fasten him, with the
knowledge of its misuse by the driver and others. We
accordingly allow the appeal, set aside the judgments of the
Courts below and order the appellant's acquittal. His bail bonds
shall stand discharged.                                          B

D.G.                                         Appeal allowed.