TaxTMI 
TaxTMI 
2023 (4) TMI 1066
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....5.2010. The orders are under challenge before this Court. 2. Briefly, the facts of the case are that the Appellant was owner of the truck bearing registration no. PAT/2029. It turned turtle near Hanuman Mandir, Hisar Road, Village Agroha on 15.05.2000 at 9.00 P.M. First Information Report (FIR) No.68 was registered at 4.25 P.M. on 16.05.2000 on the information furnished by the police party on patrol duty. As per the information furnished to the police party by two witnesses Ram Sarup (PW-6) and Naresh Kumar (PW-10) the accident occurred on 15.05.2000 at about 9.00 P.M. after the truck hit the divider. The driver and cleaner came out of the truck and on enquiry by the said witnesses, they informed their names as Joginder Singh s/o Jang Si....
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....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 (2005) 4 SCC 146, State by Inspector of Police, Narcotic Intelligence Bureau, Madurai, Tamil Nadu v. Rajangam (2010) 15 SCC 369, Bhola Singh v. State of Punjab (2011) 11 SCC 653 and Gangadhar alias Gangaram v. State of Madhya Pradesh (2020) 9 SCC 202. 4. On the other hand, learned counsel for the State subm....
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....or 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....
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....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 ....
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.... 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 o....