BALBIR SINGH Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this application under S. 482 of the Code of Criminal Procedure (in brief 'Code') the petitioner Balbir Singh seeks to quash the order of cognizance taken under S. 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 S. 20(b) of the Act. The prosecution case is that on 4/5-3-1992 (night) the Officer-in-charge of Boipariguda police station with some member of his staff was performing anti-decoity petrolling duty on the Kala Road from Boiparlguda 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 Maroti van, 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 H.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 drown up plain paper F.I.R. and as it revealed a cognizable case under S. 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, Jaypore on 4-6-1993 u/S. 20(b) of the Act against the occupants of the van and under S. 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 Ss. 20(b) and 25 of the Act.

(3.) Shri H. S. Misra, learned counsel for the petitioner contended that there is no material to show that the petitioner 'knowing' permitted his vehicle to be used for commission of offence under the Act and, as such, taking of cognizance u/S. 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 Kadarnath 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 S. 25 of the Act has rightly been taken. By referring to the provisions of Ss. 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 stages.