Summary
The registered owner of a truck that overturned carrying bags of contraband was convicted under Section 25 of the NDPS Act and sentenced to ten years, although he was not present, the driver and cleaner were acquitted after the identifying witnesses turned hostile, and no evidence showed he knew of the cargo. The Supreme Court set aside the conviction, holding that Section 25 requires proof that the owner knowingly permitted the vehicle's use, and that the presumption under Section 35 arises only after the prosecution proves the foundational facts; mere registered ownership cannot shift the burden to the accused.
Issues
- Whether the registered owner of a vehicle can be convicted under Section 25 of the NDPS Act without proof that he knowingly permitted its use for an offence under the Act.
- Whether the presumption of culpable mental state under Section 35 of the NDPS Act can be invoked against the owner when the prosecution has not proved the foundational facts.
- Whether the courts below erred in placing the burden on the owner to prove his innocence merely because he was the registered owner.
Provisions considered
- Section 25, Narcotic Drugs and Psychotropic Substances Act, 1985An owner or person in control of a vehicle is punishable only if he knowingly permits its use for an offence under the Act; knowledge and consent are the sine qua non, and no material showed the appellant's knowledge. (¶¶ 3, 6, 7, 8, 11)
- Section 35, Narcotic Drugs and Psychotropic Substances Act, 1985The presumption of culpable mental state imposes a heavy reverse burden and comes into play only after the prosecution discharges its initial burden of proving the foundational facts beyond reasonable doubt; in their absence the onus does not shift to the accused. (¶¶ 3, 7, 8, 12)
- Section 313, Code of Criminal Procedure, 1973In his examination the appellant stated that he had hired out the truck to another person for carrying sand and denied the suggestions; the trial court wrongly treated his failure to prove this plea as a ground for conviction. (¶¶ 3, 11)
Held
- Conviction under Section 25 of the NDPS Act cannot be sustained unless the prosecution proves that the vehicle was used with the knowledge and consent of the owner; registration of the offending vehicle in the accused's name cannot by itself fasten him with knowledge of its misuse by the driver and others. (¶¶ 6, 7, 8, 11)
- The presumption under Section 35 arises only after the prosecution proves the foundational facts beyond reasonable doubt; where the owner was not with the vehicle, was not arrested at the spot, the identifying witnesses turned hostile and the person to whom the driver and cleaner allegedly confessed was never examined, no foundational facts were proved and the onus could not be shifted to the accused. (¶¶ 7, 8, 10, 11, 12)
- The courts below erred in reasoning that a poor driver and cleaner would not smuggle such a quantity without the owner's connivance and that it was for the owner to clear his stand; shifting the onus to the accused to prove innocence without proof of the foundational facts is the primary error vitiating the conviction. (¶¶ 11, 12)
Result
Appeal allowed; judgments of the trial court and the High Court convicting the appellant under Section 25 of the NDPS Act set aside; bail bonds discharged.