Karnataka High Court
Mr R Gopal Reddy vs Mr. Mohammed Mukaram on 31 August, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 18.07.2024
Pronounced on : 31.08.2024 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.13943 OF 2024 (GM-RES)
BETWEEN:
MR. R.GOPAL REDDY
AGED ABOUT 68 YEARS
S/O RAMAREDDY K.,
RESIDING AT NO.62
SWAPNA SADANA
5TH 'A' CROSS, 16TH MAIN
NEAR METROPOLITAN CLUB
BTM LAYOUT, 2ND STAGE
BANNERGHATTA ROAD
BENGALURU - 560 076.
... PETITIONER
(BY SRI PRABHULING K.NAVADGI, SR. ADVOCATE FOR
SMT. SANJEEVINI NAVADGI, ADVOCATE)
AND:
1 . MR. MOHAMMED MUKARAM
POLICE INSPECTOR
AGED ABOUT 45 YEARS
BY CCB POLICE, N.T.PETE
BENGALURU CITY
2
REPRESENTED BY ITS SPP
HIGH COURT BUILDING
BENGALURU - 560 001.
2 . THE STATE OF KARNATAKA
BY ITS STATION HOUSE OFFICER
HEBBAGODI POLICE STATION
REPRESENTED BY ITS SPP
HIGH COURT BUILDING
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI THEJESH P., HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR DTD. 21.05.2024
REGISTERED BY THE RESPONDENT HEBBAGODI POLICE IN
CR.NO.0329/24 FOR THE OFFENCES PUNISHABLE UNDER SECTION
8(c), 22, 25, 27(a) AND 27(b) OF THE NDPS ACT, 1985 AND
UNDER SECTIONS 290 AND 294 OF THE IPC AND THE COMPLAINT
DTD. 20.05.2024 HEREIN PRODUCED AT ANNX-A AND B
RESPECTIVELY IN SO FAR AS THE PETITIONER IS CONCERNED.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 18.07.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court calling in question
registration of a crime in Crime No. 329 of 2024 for offences
punishable under Sections 8(c), 22(b), 22(C), 22(A), 27(B), 25, 27
of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the
Act' for short) and Sections 290 and 294 of the IPC.
2. Heard Sri Prabhuling K.Navadgi, learned senior counsel
appearing for the petitioner and Sri P.Thejesh, learned High Court
Government Pleader appearing for the respondents.
3. The facts, in brief, germane are as follows:-
The story in the case at hand would commence from
16-05-2024 in terms of what is averred in the petition. One M/s
Victory ('the Company' for short), an event management Company
enquires about the property of the petitioner and makes a payment
of `1,10,000/- to the property manager towards renting out the
property for an event of one person by name Vasu for the
celebration of his birthday. On 19-05-2024 the Company put up
4
invitation titling "Vasu's birthday - Sunset to Sunrise Victory". In
the wee hours of 20-05-2024, on receipt of credible information
that drugs were freely distributed in the said premises, Police
conducted a search, which results in seizure of several narcotic
drugs and psychotropic substances. The seizure panchanama
included drugs like Ganja, MDMA pills, Cocaine, Hydro-ganga and
other psychotropic substances. The premises was sealed, most of
the persons tested positive towards consumption of drugs. The
petitioner is roped in as accused No.6. The reason for the petitioner
being roped in is that the property stands in his name. Therefore,
he is also guilty of offence punishable under Section 27B of the Act.
Registering the crime against the petitioner is what has driven him
to this Court in the subject petition.
4. The learned senior counsel Sri Prabhuling K.Navadgi would
contend that the petitioner is 68 years old residing elsewhere. It is
the property managed by the property manager and he is sitting
elsewhere being not even aware who takes the property and does
what. He would submit that Section 25 of the Act is a complete
answer to the allegation against the petitioner, as Section 25
5
mandates knowledge of the owner of the premises of it being used
for distribution of drugs. On the said score, he seeks quashment of
proceedings qua the petitioner.
5. Per contra, the learned High Court Government Pleader
would contend that whether the petitioner has the knowledge or not
is a matter of trial. He cannot escape the clutches of law, as the
investigation is still pending. With regard to the role of the
petitioner in the entire episode of crime, he would contend that if
proceedings are quashed, at this juncture against the petitioner, it
would be a premium on the activities of the petitioner for letting his
premises to be used for the activities as alleged. He would seek
dismissal of the petition.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated facts are not in dispute. Events that
happened on 19-05-2024 through 20-05-2024 led to the subject
6
crime. The seizure panchanama insofar as the present petitioner is
concerned reads as follows:
".....F ¢£À £À£Àß §vÀðqÉà EzÀÄÝzÀÝjAzÀ £À£Àß ¥sÁå«Ä° ¥sÉæAqï DVgÀĪÀ
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£ÀAvÀgÀ vÀ¤SÁ¢üPÁjUÀ¼ÀÄ ¥ÁnðAiÀÄ°è ªÀiÁzÀPÀ ªÀ¸ÀÄÛUÀ¼À ¸ÉêÀ£É §UÉÎ PÉüÀ¯ÁV, ¸ÀzÀj
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qÀæUïì£ÀÄß ¸ÉêÀ£É ªÀiÁqÀ®Ä ¸ÀgÀ§gÁdÄ ªÀiÁrgÀÄvÁÛgÉ. F ¥ÁnðAiÀÄ°è qÀæUïì ¸ÉÃªÉ ªÀiÁqÀĪÀ
§UÉÎ ªÀiÁ°ÃPÀgÁzÀ ²æà UÉÆÃ¥Á®gÉrØgÀªÀjUÉ ªÀiÁ»w EgÀĪÀÅ¢®èªÉAzÀÄ w½¹zÀ£ÀÄ...."
It is the case of the person himself, who searched, that the
petitioner is not in the know of things. No person has pointed out a
finger at the petitioner as to the knowledge of consumption or
distribution of drugs on the said date in the said premises. The
petitioner is roped in, after a suo motu complaint found registered
by the jurisdictional police. The complaint reads as follows:
"gÀªÀjUÉ,
¥Éưøï E£ïì¥ÉPÀÖgï,
J¯ÉPÁÖç¤Pï ¹n ¥Éưøï oÁuÉ,
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7
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*****
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PÉÊUÉƼÀî®Ä F ªÀÄÆ®PÀ PÉÆÃjPÉÆArgÀÄvÀÛzÉ ªÀÄvÀÄÛ F zÀÆj£ÉÆA¢UÉ PÁAiÀÄðPÀæªÀÄzÀ ©üwÛ¥Àvæz À À
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8
[ªÉƺÀªÀÄäzï ªÀÄÄPÀgÀªÀiï]
¥Éưøï E£ïì¥ÉPÀÖgï,
ªÀiÁzsÀPÀzÀæªÀå ¤UÀæºÀ zÀ¼À,
¹¹©, ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ."
It is then the petitioner is issued a notice under Section 41A
of the Cr.P.C., to appear before the Investigating Officer. It is the
averment in the petition that it is then the petitioner comes to know
about what has happened in the premises. It would not, on the face
of it, become believable that the petitioner is not aware of what
happened on 20-05-2024 as, a notice was issued on 23-05-2024
but what merits consideration is, whether the provisions of the Act
would get attracted qua the petitioner. To consider the said issue,
it becomes germane to notice Section 25 of the Act. Section 25 of
the Act reads as follows:
"25. Punishment for allowing premises, etc., to be
used for commission of an offence.--Whoever, being the
owner or occupier or having the control or use of any
house, room, enclosure, space, place, animal or
conveyance, knowingly permits it to be used for the
commission by any other person of an offence punishable
under any provision of this Act, shall be punishable with the
punishment provided for that offence."
(Emphasis supplied)
Section 25 deals with punishment for allowing the premises to be
used for commission of offence. It observes that whoever, being
the owner or occupier knowingly permits it to be used for
9
commission of the offence would become punishable. This is the
only allegation against the petitioner. Interpretation of Section 25
need not detain this Court for long or delve deep into the matter.
8. The Apex Court in the case of BHOLA SINGH v. STATE
OF PUNJAB1 has held as follows:
".... .... ....
5. We have gone through the judgment of the trial court
and the High Court insofar as Bhola Singh is concerned. We see
that 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 of
the Act against him to hold that by giving a fake address his
culpability was writ large on the facts of the case.
6. 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 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 for the
applicability of Section 35 of the Act were not made out.
7. 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
whether there was any evidence as to the involvement of the
appellant, other than that he was the co-owner of the truck and
1
(2011) 11 SCC 653
10
that he had given a wrong address. The learned counsel fairly
stated that there was no other evidence against the appellant.
8. 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 not made out.
9. 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.--(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 the fact that he had
no such mental state with respect to the act charged as an
offence in that prosecution.
Explanation.--In this section 'culpable mental state'
includes intention, motive, knowledge of a fact and belief in,
or reason to believe, a fact.
(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."
10. 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 v. State of
Punjab [(2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748]
while upholding the constitutional validity of 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 35 would come into play.
11
11. 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 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 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 Fatehabad in Haryana while registering
the offending truck cannot by any stretch of imagination
fasten him with the knowledge of its misuse by the driver
and others.
12. 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."
(Emphasis supplied)
The Apex Court, later, in the case of HARBHAJAN SINGH v.
STATE OF HARYANA2 following the judgment in the case of
BHOLA SINGH and has held as follows:
".... .... ....
3. Brief argument raised by the learned counsel for
the appellant is that Section 25 of the NDPS Act provides
that an owner of the vehicle could be convicted only if he
2
2023 SCC OnLine SC 490
12
knowingly permits use of his vehicle for commission of
any offence. No such case was made out by the
prosecution. Even the presumption as provided for in
Section 35 of the NDPS Act cannot be raised as the prosecution
had failed to discharge its initial burden of proving the
foundational facts. In the statement of the Appellant as
recorded under Section 313 of the Criminal Procedure Code,
1973, it was submitted that he had given the truck on hire to
one Kashmir Singh s/o Hoshiyar Singh resident of Dalel
Singhwala for carrying sand. The Appellant was not arrested
from the spot. The driver and cleaner of the truck have already
been acquitted and the State has not filed any appeal
challenging their acquittal. In support of his arguments, learned
counsel for the Appellant has relied upon the judgments of this
Court in Balwinder Singh v. Asstt. Commr., Customs and Central
Excise, State by Inspector of Police, Narcotic Intelligence
Bureau, Madurai, Tamil Nadu v. Rajangam2, Bhola
Singh v. State of Punjab and Gangadhar alias
Gangaram v. State of Madhya Pradesh.
4. On the other hand, learned counsel for the State
submitted that the Appellant has failed to prove its case that the
truck was not being used for any illegal activities. The owner of
the truck is vicariously liable. Though stand was taken by him
that the truck was given for carrying sand however no such
evidence was led by him to prove his plea. Presumption goes
against him.
5. Heard learned counsel for the parties and perused the
relevant referred record.
6. The basic facts of the case as have been noticed
above are not in dispute. The Appellant who is the
registered owner of the truck was not arrested from the
spot. A case was set up by the prosecution that Joginder
Singh and Gurmail Singh were driver and cleaner of the
truck. Even they were not arrested from the spot. Their
identity was established on the basis of the information
furnished to the police party by Ram Sarup (PW-6) and
Naresh Kumar (PW-10). However, when appeared in
Court, they were declared hostile. Joginder Singh and
Gurmail Singh were acquitted. The Appellant is owner of
the truck. He was not arrested from the spot.
13
Section 25 of the NDPS Act provides that if an owner of a
vehicle knowingly permits it to be used for commission of
any offence punishable under the NDPS Act, he shall be
punished accordingly.
7. 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.
8. The issue was considered by this Court in Bhola
Singh's case (supra). 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. Relevant paragraphs thereof are
extracted below:
"8. 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 not made out.
9. 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.--(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 the fact that he had
no such mental state with respect to the act charged as an
offence in that prosecution.
14
Explanation.--In this section 'culpable mental state'
includes intention, motive, knowledge of a fact and belief in,
or reason to believe, a fact.
(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."
10. 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 v. State of
Punjab (2008) 16 SCC 417 while upholding the
constitutional validity of 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 35 would come
into play.
11. Applying the facts of the present case to the case
cited above, 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 lays on
the prosecution, as would be clear from the word
"knowingly", and 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 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 evidences 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
Fatehabad in Haryana and that the Appellant had taken the
truck on superdari. Registration of the offending truck
cannot by any stretch of imagination fasten him with the
knowledge of its misuse by the driver and others."
(emphasis supplied)
9. On the facts of the case in hand, it is evident that
FIR No. 68 dated 16.05.2000 was registered on a
15
complaint by Sub-Inspector Ram Mehar (PW-8) who was
on a petrol duty when it was found the truck no.
PAT/2029 was lying turtle and bags of powder scattered.
He was informed by two shopkeepers at the nearby place,
namely, Ram Sarup (PW-6) and Naresh Kumar (PW-10)
that the accident occurred at 9 P.M. on 15.05.2000. After
the accident, the driver and the cleaner came out of the
truck cabin and on enquiry by the said witnesses they
informed their names as Joginder Singh s/o Jang Singh
and Gurmail Singh s/o Nachhattar Singh. They claimed
themselves to be the driver and cleaner of the truck. They
had gone to inform the owner of the truck of the said
accident but did not return. Having suspicion that the
truck was carrying contraband substances, both the truck
and the contraband items were taken into possession.
10. Eleven prosecution witnesses were produced. Two
prosecution witnesses namely Ram Sarup (PW-6) and Naresh
Kumar (PW-10) could be said to be relevant for the reason that
in the FIR their names were mentioned as the witnesses who
had informed the police party about the names of the driver and
cleaner of the truck. They denied that any incident had
happened in their presence or they informed anything to the
police party. Both were declared hostile. They did not even
identify the driver and cleaner of the truck. PW-7 ASI Ram
Sarup was posted at Police Station Agroha along with Sub-
Inspector Ram Mehar (PW-8), who was the author of the FIR.
Besides reiterating what is stated in the FIR in his evidence, he
added that on 19.05.2000 Balwan Singh s/o Chatar Singh,
resident of New Grain Mandi, Barwala stated that Joginder Singh
s/o Jang Singh and Gurmail Singh s/o Nachhattar Singh, the
driver and cleaner of the truck in question stated before him
that they have brought 21 bags of Choorapost along with
powder from Rajasthan on instructions of Harbhajan Singh and
that their truck turned turtle at Agroha. As the police party was
in search of them, they asked that they be produced before the
police. The fact remains that Balwan Singh s/o Chatar Singh was
not produced in evidence. The case sought to be set up by the
prosecution was that the driver and the cleaner of the truck
made extra judicial confession before Balwan Singh s/o Chatar
Singh. Ram Mehar who is the author of the FIR appeared as PW-
8. In his statement also, nothing was stated against the
Appellant. He also referred to the statement of Balwan Singh s/o
16
Chatar Singh recorded during investigation, who was not
produced in evidence.
11. 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. The judgment of the Trial Court was upheld by the High
Court."
(Emphasis supplied)
The High Court of Rajasthan in SHARVAN KUMAR v. STATE OF
RAJASTHAN3 following the judgment in the case of BHOLA
SINGH supra has held as follows:
".... .... ....
15. The next issue before this court is whether the
learned Judge was legally justified in taking cognizance against
the petitioner for offences under Sections 8(c)/15(c) and 25 of
the Act on the basis of Sec. 35 of the Act, or not?
Section 25 of the Act is as under:
Punishment for allowing premises, etc., to be
used for commission of an offence; Whoever, being
3
2011 SCC OnLine Raj 2693
17
the owner or occupier or having the control or use of
any house, room, enclosure, space, place, animal or
conveyance, knowingly permits it to be used for the
commission by any other person of an offence
punishable under any provision of this Act, shall be
punishable with the punishment provided for that
offence.
And Section 35 of the Act is as follows:
Presumption of culpable mental state:-- (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 the fact that he had no
such mental state with respect to the act charged as an
offence in that prosecution.
Explanation: In this section "culpable mental state"
includes intention, motive, knowledge of a fact and belief in,
or reason to believe, a fact.
(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.
16. A bare perusal of Section 25 of the Act clearly
reveals that it creates a vicarious liability against a
person who is the owner, or is occupier or having the
control or use of any conveyance etc. provided that he
has knowingly permitted the conveyance to be used by
another person for the purpose of commission of an
offence under the Act. Naturally, the words "knowingly
permitted" means to have the knowledge that the other
person shall do an act, legal or illegal, and to allow him to
do so. Hence, in order to vicariously involve the owner
the prosecution must make out a prima facie case that
the owner has knowingly allowed the use of the
conveyance by another person for the purpose of
commission of an offence under the Act.
17. On the other hand, a bare perusal of Section 35
of the Act reveals that it creates a rebuttable
presumption against the accused. The said presumption
18
cannot be drawn at the initial stage of taking cognizance.
It can be invoked only during the trial. But before this
presumption can be pressed into service, the prosecution
must lay down the basic facts for raising the presumption
against the accused. It is only after the prosecution has
laid down the basic facts constituting the offence that the
presumption can be raised against the accused. It is only
after the prosecution has discharged its initial burden of
proof that the onus of proof shifts to the accused to rebut
the presumption by leading cogent evidence on his
behalf.
18. In the case of Bhola Singh (supra) the appellant,
Bhola Singh, the owner of the truck in which contraband drugs
were discovered, was convicted of offence under Section 25 of
the Act with the aid of the presumption raised under Section 35
of the Act. While acquitting Bhola Singh, the Hon'ble Supreme
Court observed as under:
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 it was only after
the evidence proved beyond a 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 a
reasonable doubt and not merely when its existence is
established by a preponderance of probabilities. In the
absence of any evidence with regard to the mental state of
the appellant no presumption under Section 35 can be
drawn.
19. Admittedly the present case deals with the
initial stage of taking of cognizance, while the case
of Bhola Singh (supra) dealt with a case of conviction.
But even then, before cognizance can be taken a prima
facie case must exist against the petitioner in the
evidence collected by the police. The police report must
reveal the basic facts constituting the elements of offence
under Section 25 of the Act. There has to be sufficient
evidence to prima facie show that the present petitioner
had the knowledge that the jeep owned by him was used
by Jabbar Singh, his brother, for commission of an
19
offence under this Act. And the petitioner permitted him
to do so. After all, at the stage of taking cognizance the
learned Judge is concerned with the existence of a prima
facie case against the accused. The trial court is not
permitted to sift through the evidence. In fact, its
examination is limited only to the evidence gathered by
the investigation agency and as contained in the report/
com-plaint. The learned court is not permitted to step
outside these limits. Further, the presumption under
Section 35 of the Act could not be raised at the time of
taking cognizance, but is available only during the course
of the trial.
20. In the present case, the police had registered and
investigated the case against three persons, namely Rajuram,
Jabbar Singh and Narendra @ Nenu. While it had filed the
charge-sheet against the first two, it had kept the investigation
pending against the last one. According to the charge-sheet, the
police was well aware of the fact that the petitioner was the
owner of the jeep in question. They were also aware of the fact
that the petitioner was serving in the Indian Army at the Siachin
Glacier. In fact, while the police had filed the charge-sheet
against Jabbar Singh for offence under Section 25 of the Act
along with other offences, it cited the petitioner as a prosecution
witness. Therefore, the police did not file any charge-sheet
against the petitioner.
21. A bare perusal of the impugned order clearly reveals
that the learned Judge has taken the cognizance against the
petitioner not so much on the police report as on the application
filed by the petitioner under Sections 451 and 457 of the Code
for the custody of the jeep. According to the learned Judge, in
the application the petitioner had clearly admitted that he was
owner of the jeep. Therefore, drawing the presumption under
Section 35 of the Act, the learned Judge has taken the
cognizance of offence under Section 25 of the Act. However, the
learned Judge has ignored the legal position, as discussed
above, and as underlined by the Apex Court in the case of Bhola
Singh (supra).
22. Moreover, the learned Judge has totally ignored
the contents and tenor of the charge-sheet qua the
petitioner, as mentioned above. In fact, the learned
20
Judge should have initially confined his consideration to
the police report submitted before him. He should not
have jumped to the application submitted by the
petitioner. The learned Judge should have first mentioned
the evidence gathered by the police against the
petitioner, if any, and only then referred to the
application moved by the petitioner. Instead, the learned
Judge has placed the cart before the horse. This court has
asked the learned Public Prosecutor if there was any
evidence gathered by the police against the petitioner.
The learned Public Prosecutor fairly conceded, and in the
opinion of this court rightly so, that there is not an iota of
evidence collected by the police against the petitioner. In
such a scenario, it is rather surprising that the learned
Judge has taken the cognizance against the petitioner.
Clearly, the learned Judge has over-stepped his
jurisdiction.
23. The learned Judge has also over-looked the fact
that the police had submitted the charge-sheet against
Jabbar Singh for offence under Section 25 of the Act,
besides other offences. Interestingly, the learned Judge
has taken cognizance of the offence under Section 25 of
the Act against the petitioner also. Curiously, if Jabbar
Singh and the petitioner, both of whom are brothers,
have committed the offence under Section 25 of the Act,
then the learned Judge should have also taken the
cognizance for offence under Section 29 of the Act which
lays down the punishment for abetment and criminal
conspiracy. However, the learned Judge has failed to do
so. Thus, the learned Judge has ignored a provision of the
Act."
(Emphasis supplied)
The Bombay High Court in the case of NICHOLAS JOHN
FERNANDES v. STATE4 while quashing the proceeding on
4
2021 SCC OnLine Bom.2980
21
interpretation of Sections 25 and 27A of the Act has held as follows:
".... .... ....
11. Having read the written complaint as well as the
charge-sheet, it admits of no doubt that there is no iota of
allegation against any of the petitioners of having committed
any offence. The petitioners' involvement is sought to be
attracted by reference to a single document, i.e., the
communication dated 24/8/2017 of the complainant, by which
Sections 25 and 27A of the NDPS Act were added. Even such
communication does not refer to any single overt act which
could attract Section 27A. Very fairly, and in our view quite
rightly, Mr. Bhobe did not endeavour to support the prosecution
case from that angle. As has been noticed above, he has
referred to Section 35 of the NDPS Act to sustain the charge-
sheet which invokes Section 25. It would, therefore, fall for our
consideration as to whether even a case of suspicion that the
petitioners were involved in the alleged offences can be said to
have been set up in the charge-sheet by the officer who
investigated the FIR.
12. In our considered opinion, the investigating
officer has lifted the word 'knowingly' from Section 25 of
the NDPS Act and inserted it in the communication to
suggest the petitioners' involvement in the crime.
Without anything more, it cannot even be said that this is
a valid ground for suspecting the petitioners'
involvement. It is presumed that the said officials had
proposed to raid the said restaurant, with the intention to
keep a check that those involved in running the said
restaurant maintains the standards mandated by the
relevant enactments for food safety and prevention of
food adulteration. There is no material to suggest that
they, or the complainant, had any prior knowledge or
information of activities in dealing with contrabands
being carried on in the said restaurant. It is by chance
that "the white colour plastic bag" which the said officials
found out in course of the raid was suspected to contain
ganja. It is impossible to form an opinion in this factual
22
background to uphold that there are reasons to suspect
that the petitioners 'knowingly' permitted their premises
to be used for commission of any offence by any person
punishable under the NDPS Act. Mr. Bhobe has sought to
salvage the situation by contending that the prime
accused is the husband of the licensee. However, nothing
substantial turns on it. First, we do not find any material
in the charge-sheet to the effect that the prime accused is
the husband of the licensee. Secondly, there must be
some material based whereon a suspicion could arise that
'knowingly' the petitioners allowed the prime accused to
use part of the petitioners' premises for illegal and
unlawful activities including commission of any offence
under the provisions of the NDPS Act.
13. The presumption referred to in Section 35 of
the NDPS Act could be drawn by the Court at the stage of
trial, only after some evidence led by the prosecution
would prove that the petitioners 'knowingly' allowed
their premises to be used for commission of an offence by
any person for attracting Section 25 of the NDPS Act. We
may draw guidance in this behalf from the decision of the
Supreme Court in Bhola Singh v. State of Punjab [(2011)
11 SCC 653], wherein it has been held as follows:
"11 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 it was only af-ter 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 the opin-ion 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 appel-lant's conduct in giving his residential
address in Rajasthan although he was a resident of
Fatehabad in Haryana while registering the offending truck
23
cannot by any stretch of imagination fasten him with the
knowledge of its misuse by the driver and others."
14. There being absolutely no material whatsoever
collected by the investigating officer to connect the
petitioners with the crime, it would amount to grave
injustice if the proceedings are allowed to proceed
further against them."
(Emphasis supplied)
The Punjab and Haryana High Court in a judgment reported in
HARWINDER SINGH v. STATE OF PUNJAB5 on interpretation of
Section 25, acquitted the accused. The High Court in the said
judgment has held as follows:
".... .... ....
12. Sections 25 & 35 of the NDPS Act reads as follows:
"25. Punishment for allowing premises, etc., to be
used for commission of an offence-
Whoever, being the owner or occupier or having the
control or use of any house, room, enclosure, space, place,
animal or conveyance, knowingly permits it to be used for
the commission by any other person of an offence
punishable under any provision of this Act, shall be
punishable with the punishment provided for that offence."
35. Presumption of culpable mental state-
(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 the fact that
he had no such mental state with respect to the act charged
5
2023 SCC OnLine P & H 2217
24
as an offence in that prosecution. Explanation.-In this
section "culpable mental state" includes intention, motive
knowledge of a fact and belief in, or reason to believe, a
fact.
(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.
13. The crucial words that the Legislature used in
section 25 of the statute of NDPS Act, 1985 are
"knowingly permits it to be used for the commission of
the offense by any other persons." Section 35 of
the NDPS Act deals with the presumption of culpable
mental. However, the intent of Section 25 and Section 35
is parametria the same but carves a special role upon the
investigation while proving an offense under 25 of
the NDPS Act because of the usage of the word
"knowingly." Thus, the presumption under Section 35 of
the NDPS Act is similar to the intent of Section 25 of
the NDPS Act, and as such, Section 35 of the NDPS
Act would not dilute the burden that the Legislature had
put upon the investigator in section 25 of the NDPS Act.
Resultantly, the presumption under Section 35 of
the NDPS Act would not apply in the case under
Section 25 of the NDPS Act if there is not even an iota of
evidence regarding knowingly permitting the usage of the
things mentioned in Section 35 of the NDPS Act for the
commission of the offence.
14. After appreciating the evidence gathered and proved
by the prosecution against the appellant regarding his
knowledge and permission to use the tractor-trolly for
transporting poppy husk, it is clear that the prosecution could
not bring its case, against the appellant, within the purview and
scope of Section 25 of NDPS Act, and the essential requirements
to prove knowledge are missing. There is not even an iota of
evidence that the appellant knew about the other two convicts
transporting the poppy husk in his tractor trolly or that he had
permitted them to do so for this purpose. A perusal of the
impugned judgment does not refer to the intent of the
legislature as explicitly clarified in Section 25 of the NDPS Act.
25
Thus, the prosecution has failed to prove its case beyond a
reasonable doubt, and the impugned judgment convicting the
appellant under section 25 of the NDPS Act is not in consonance
with the law.
15. Accordingly, the present appeal is allowed. The order
passed by the trial Court is set aside. The appellant stands
acquitted. Bail bonds stand discharged."
(Emphasis supplied)
9. The afore-mentioned are the judgments of the Apex Court
and that of other High Courts which on interpretation of Section 25
of the Act have clearly held that knowledge is conscious knowledge.
There should be more than prima facie material to hold that the
owner or occupier of the premises was in complete knowledge of
what was happening in the premises, as Section 25 creates a
vicarious liability against the person who is the owner who has
knowingly permitted usage of premises, knowledge pervades the
provision of law. Therefore, the judgments of the Apex Court in the
case of BHOLA SINGH and HARBHAJAN SINGH supra would
clearly cover the issue on all fours, as the petitioner, even
according to the search party, did not know what was happening in
the premises, as it is at the time of investigation, preliminary
though, reveals that the petitioner who sits elsewhere did not know
26
for what purpose the premises was taken for rent on the said date.
Therefore, it would be unjust to permit to be tried under Section 25
of the Act, on the score that Section 35 of the Act raises a
presumption against the petitioner.
10. In the light of unequivocal facts narrated hereinabove and
the judgments rendered by the Apex Court and other High Courts,
interpreting Section 25, as also prima facie view of the prosecution
that the petitioner was not within the knowledge of what was
happening in his property, I deem it appropriate to obliterate the
proceedings against the petitioner, failure of which, would become
an abuse of the process of law and result in miscarriage of justice.
11. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Crime registered in Crime No.329 of 2024 of Hebbagodi Police Station stands quashed.
27(iii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the investigation/proceedings against other accused.
Sd/-
(M. NAGAPRASANNA) JUDGE bkp CT:SS