Orissa High Court
Balbir Singh vs State Of Orissa on 30 November, 1994
Equivalent citations: 1995CRILJ1762, 1995(I)OLR143
JUDGMENT R.K. Patra, J.
1. In this application under section 482 of the Code of Criminal Procedure (in brief 'Code') the petitioner Balbir Singh seeks to qusah the order of cognizance taken under section 25 of the Narcotic Drugs and Psychotropic Substances Act. 1985 (hereinafter referred to as 'the Act') and the continuation of the proceedings against him.
2. The gravamen of the allegation against the petitioner is that he permitted his vehicle to be used for commission of an offence under section 20(b) of the Act. The Prosecution case is that on 4/5-3-1993 (night) the Officer-in-charge of Boipariguda Police Station with some members of his staff was performing anti dacoity patrolling duty on the Main Road from Boipariguda to Malkangiri of the State Highway No. 6. At about 4-40 a. m. he noticed near village Tapajodi one vehicle coming from Govindapalli side towards Boipariguda. He stopped the vehicle and found that it was a Maruti ven, white in colour, bearing registration number OAS 7405. There were six occupants in the van including the driver On suspicion he conducted search of the van and found two gunny bags kept inside the dickey of the van. He got smell of ganja from those bags which were brought out. On opening of the bags it was found that they contained ganja which weighed 23 Kgs. As the occupants of the van could not explain the possession of the contraband article, it was duly seized. From the R. C. book found in the van it was known that the petitioner is the owner of the vehicle. The occupants told the Officer-in-charge that the petitioner had sent them to Sileru for procurement and transportation of ganja. On the aforesaid allegations, the Officer-in-charge drew up plain paper FIR and as it revealed a cognizable case under section 20(b)/25 of the Act he took up investigation at the spot. Formal FIR was lodged by him at the Police Station on 5-3-1993 at 12 noon. The occupants of the vehicle were arrested. After completion of investigation, charge-sheet was submitted in the Court of the Sessions Judge, Jeypore on 4-6-1993 under section 20(b) of the Act against the occupants of the van and under section 25 of the Act against the petitioner showing him as an absconder. On 11-6-1993 the learned Sessions Judge after perusing "the case diary and other relevant papers" took cognizance of the offence under Sections 20(b) and 25 of the Act.
3. Shri H.S. Mishra, learned counsel for the petitioner contended that there is no material to show that the petitioner 'knowingly' permitted his vehicle to be used for commission of offence under the Act and as such taking of cognizance under section 25 of the Act and initiation/continuation of the proceedings against him should be quashed in the interest of justice. Shri D.K. Misra, learned counsel for the state, submitted that the K. C. Book found from the van in question disclosed that the petitioner is the owner of the vehicle and from the FIR and statements of Kedarnath Sahu, Constable and Dr. B.K. Prusty, Medical Officer recorded during the course of investigation, it would appear that the occupants of the van confessed that they had gone for procurement of ganja as per the direction of the petitioner who is the owner of the vehicle and cognizance under section 25 of the Act has rightly been taken by referring to provisions of Sections 35, 54 and 60(3) of the Act, he further urged that the contraband article having been seized from the vehicle belonging to the petitioner, it has to be presumed that the vehicle was used for commission of the offence with his knowledge and or connivance and he can rebut the said presumption by adducing evidence only of the trial and not at this interlocutory stage.
4. section 25 of the Act provides, inter alia, that whoever being the owner of coveyance knowingly permit it to be used for commission by any other person of an offence under any provision of the Act, shall be punishable with the sentence mentioned therein. The linchpin of the offence under section 25 thus, lies in knowingly permitting use of the vehicle for commission of any offence under the Act. No doubt under section 26 of the Act. the Court shall presume culpable mental state of the accused in any prosecution for an offence under the Act. Similarly, under section 64 of the Act, presumption is available to be raised that the accused has committed an offence under Chapter-IV of the Act. Similar prosumption can be raised in case of contiscation of conveyance etc. used in carrying any narcotic drug as provided under section 60(3) of the Act. But in a case under section 25 of the Act. it is for the prosecution to establish that the owner of the vehicle knowingly permitted the vehicle to be used for commission of an offence under the Act. I say so because of the specific mention of the word 'knowingly' by the legislature in section 25 of the Act. The legislature is not expected to use unnecessarily any word or expression. It does not use any word without meaning something. As such, the expression 'knowingly' has to be given due weight. When the Legislature has employed the word knowingly in Section 25 of the Act. it has to be held that so far as the offence under section 25 is concerned, it is for the prosecution to establish that with the owner's knowledge, the vehicle was used for commission of an offence under the Act and the presumption of culpable mental state referred to in section 36, 54 and 60(3) of the Act cannot be pressed into service by the prosecution. In Raghunath Singh v. State of Madhya Pradesh, 1967 Maharashtra Law Journal 575, the Supreme Court held that the words 'knowing' or 'knowingly' are used to indicate that knowledge as such must be proved either by positive evidence or circumstantially before mens tea can be established. The words 'knowing' or 'knowingly' are obviously more forceful than the words 'has reason to believe' because they insist on a greater degree of certitude in the mind of the person who is said to know or to do the act knowingly.
5. The next question is as to what are the materials available against the petitioner in support of the charge under section 25 of the Act. The learned counsel for the State fairly stated that the only material against the petitioner is the extra-judicial confession made by the co-accused (occupants of the vehicle) stating that the petitioner had sent them to Sileru for procurement and transportation of ganja. In this connection, he has referred to the FIR and the statements of K. N. Sahu. constable and Dr. B. K. Prusty, Medical Officer, recorded under section 161 of the Code. The aforesaid material would at best amount to confession of co-accused. It is now well-settled that confession of co-accused cannot be treated as substantive evidence. In dealing with a case against the accused person, the Court cannot start with the confession of a co-accused. It must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt if the judicial mind is about to reach on the said other evidence. In other words, confession by a co-accused can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence.
6. For the aforesaid reasons, I am of the considered opinion that merely because the petitioner is the owner of the vehicle, that by itself is not sufficient to sustain the charge under section 25 of the Act. Something more is necessary to indicate that the petitioner knowingly permitted his vehicle to be used for commission of offence by others which is lacking
7. The crucial question that now arises for consideration is whether on the facts and circumstances of the case, a case has been made out by the petitioner for quashing the proceedings in exercise of the power under section 432 of the Code. In it has been held by the Supreme Court as under :
"The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may, while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
8. Admittedly, there being no other material against the petitioner except the so-called confession of his co-accused persons which is of little value, the chance of success of the prosecution is bleak and there is no justification for the proceedings to continue against the petitioner as it would amount to abuse of the process of law.
9. In the result, the petition succeeds. The entire proceedings against the petitioner in Sessions Case No. 93 of 1993 on the file of the Additional Sessions Judge, Jeypore are hereby quashed.
Petition is allowed.