HARBHAJAN SINGH versus STATE OF HARYANA

Citation: [2023] 3 S.C.R. 545 · Decided: 25-04-2023 · Supreme Court of India · Bench: ABHAY S. OKA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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[2023] 3 S.C.R. 545
545
HARBHAJAN SINGH
v.
STATE OF HARYANA
(Criminal Appeal No. 1480 of 2011)
APRIL 25, 2023
[ABHAY S. OKA AND RAJESH BINDAL, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985: ss.
25, 35 – Applicability of s. 25 – When – Presumption of culpable
mental state u/s. 35 – When, available –On facts, truck found lying
turtle and bags of powder scattered which on investigation found
to be narcotic substance – Two witnesses saw the driver and the
cleaner coming out of the truck and disclosed the name of the owner-
appellant, and fled away – Conviction of the appellant u/s. 25 and
imposition of imprisonment for 10 years by the courts below – On
appeal, held: s. 25 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 – On facts, the
witnesses turned hostile – They did not even identify the driver and
the cleaner of the truck – Appellant was not with the vehicle nor he
was arrested from the spot when the accident occurred or when the
truck and contraband were taken into custody – His conviction
was merely being the registered owner of the truck –Prosecution
failed to produce any material on record to show that the vehicle, if
was used for any illegal activity, was used with the knowledge and
consent of the appellant – Even presumption as provided for u/s.
35 would not be available since the prosecution failed to discharge
initial burden on it to prove the foundational facts – In the absence
thereof, the onus would not shift on the accused– Courts below
erred in shifting the onus on the appellant to prove his innocence
without the foundational facts having been proved by the
prosecution – Thus, the conviction of the appellant cannot be legally
sustained – Judgments passed by the courts below set aside.
Bhola Singh v. State of Punjab (2011) 11 SCC 653 :
[2011] 2 SCR 642 – relied on.
Balwinder Singh v. Asstt. Commr., Customs and Central
Excise (2005) 4 SCC 146; State by Inspector of Police,
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SUPREME COURT REPORTS
[2023] 3 S.C.R.
Narcotic Intelligence Bureau, Madurai, Tamil Nadu v.
Rajangam (2010) 15 SCC 369; Gangadhar alias
Gangaram v. State of Madhya Pradesh (2020) 9 SCC
202 – referred to.
Case Law Reference
(2005) 4 SCC 146
referred to
 Para 3
(2010) 15 SCC 369
referred to
 Para 3
(2020) 9 SCC 202
referred to
 Para 3
[2011] 2 SCR 642
relied on
 Para 8
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1480 of 2011.
From the Judgment and Order dated 14.05.2010 of the High Court
of Punjab & Haryana at Chandigarh in CRLA No. 1091 of 2005.
D. N. Goburdhun, Sr. Adv., Brij Bhushan, Ms. Priyanka Tyagi,
Advs. for the Appellant.
Dinesh Chandra Yadav, AAG, Samar Vijay Singh, Ishwar Chand,
A. S. Rishi, Manoj Gautam, Keshav Mittal, Ms. Amrita Verma, Ms.
Sabarni Som, Nikhil Kumar, Rajat Mishra, Advs. for the Respondent.
The Judgment of the Court was delivered by
RAJESH BINDAL, J.
1. The Appellant-Harbhajan Singh was convicted vide judgment
dated 18.05.2005 passed by the Trial Court under Section 25 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
referred to as “the NDPS Act”) and sentenced to undergo imprisonment
for a period of 10 years. In appeal, the conviction and sentence of the
Appellant was upheld by the High Court vide order dated 14.05.2010.
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
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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 Singh
and Gurmail Singh s/o Nachhattar Singh. They also disclosed the name
of the owner of the truck as Harbhajan Singh. 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 custod

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