Brief Facts
- The Appellant-Harbhajan Singh was convicted vide judgment passed by the Trial Court under Section 25 of the NDPS Act. The conviction and sentence of the Appellant was upheld by the High Court.
- The truck hit the divider on the road and turned turtle. 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 and sent them for testing. The Owner of the truck (Appellant) was not arrested from the spot however, he being the registered owner of the truck was convicted under Section 25 of the NDPS Act. The Driver and the cleaner were initially charge sheeted, however they were acquitted by the Trial Court as the independent witnesses turned hostile.
Issues
- Whether for applicability of Section 25 of the NDPS Act, knowledge and consent of the owner is sine qua non?
- Whether the onus can be shifted on the accused to prove his innocence without proving foundational facts of his guilt?
Held
- The Hon’ble Apex Court acquitted the Appellant.
- In the case in hand, the prosecution has failed to produce any material on record to show that the vehicle in question, if was used for any illegal activity, was used with the knowledge and consent of the Appellant. Even presumption as provided for under Section 35 of the NDPS Act will not be available for the reason that the prosecution had failed to discharge initial burden on it to prove the foundational facts. In the absence thereof, the onus will not shift on the accused.
- The issue was considered by this Court in Bhola Singh v. State of Punjab, (2011) 11 SCC 653. It was opined that unless the vehicle is used with the knowledge and consent of the owner thereof, which is sine qua non for applicability of Section 25 of the NDPS Act, conviction thereunder cannot be legally sustained.
- The appellant in his statement recorded under Section 313 CrPC denied all the suggestions. In the entire evidence led by the prosecution, no material was produced against the Appellant to discharge initial burden to prove the foundational facts that the offence was committed with the knowledge and consent of the Appellant. It is a case in which he was not with the vehicle nor was he arrested from the spot when the accident occurred or when truck and contraband were taken into custody. He has been convicted merely on the ground that he was the registered owner of the truck. The Trial Court had put entire burden of defence on the Appellant being the registered owner of the vehicle. The Court held that the driver and cleaner of the vehicle being poor will not take risk of smuggling such huge quantity of contraband without the connivance of the owner and it was for the appellant to clear his stand.
- In the case in hand, the primary error committed by the Courts below while convicting the Appellant is that the onus is sought to be shifted on him to prove his innocence without the foundational facts having been proved by the prosecution. Hence, the conviction of the Appellant cannot be legally sustained.
Relevant Para No.
7, 8, 11, 12