VINOD KUMAR SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE accused -petitioner has filed this third application for grant of bail under Section 439 Cr.P.C. in respect of FIR No. 53/2014 registered at Police Station Manoharpur (District Jaipur) for the offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as "the Act"). The first application filed by the petitioner for grant of bail was dismissed by this Court as withdrawn vide order dated 5.12.2014 with liberty to file fresh application after framing of charge. The second application moved by the petitioner was dismissed on merit by this Court vide order dated 23.1.2015 after charge for the offence under Section 8/25 of the Act was framed against the petitioner by the trial Court and for dismissing that application Sections 25, 35 and 37 of the Act were taken into consideration by this Court. The present application has been filed after statements of three prosecution witnesses have been recorded by the trial Court. It is to be noted that the petitioner is the registered owner of the vehicle which was found to be carrying narcotic drug without any valid licence or permit and, therefore, against him charge under Section 8/25 of the Act has been framed.

(2.) IT was submitted by the learned counsel for the petitioner that the petitioner has been involved in the case merely because he happens to be registered owner of the vehicle allegedly found to be carrying the contraband, but during the course of investigation and even during trial none of the prosecution witnesses so far examined has stated that the petitioner as a registered owner of the vehicle knowingly permitted the co -accused to use his vehicle to carry any contraband article and, therefore, the petitioner could not have involved in the case and he is entitled to be released on bail more particularly looking to the period of his custody. It was further submitted that although under Section 35 of the Act there is presumption of culpable mental state on the part of a person accused of an offence under the provisions of the Act but it is well settled legal position that initial burden is on the prosecution to prove the required culpable mental state of the accused and in the present case also it was for the prosecution to show that the petitioner knowingly permitted his vehicle to be used for carrying contraband article. It was also submitted that the petitioner was arrested without there being any evidence regarding his aforesaid culpable mental state and thereafter a notice under Section 133 of the Motor Vehicle Act was given to him by the investigating officer on 9.9.2014, but in the notice also it was not mentioned that the petitioner knowingly allowed his vehicle to be used for transportation of contraband. It was submitted that it was the duty of the investigating officer to seek explanation from the petitioner in what circumstances his vehicle has been found to carry contraband article but without doing so he was arrested without there being any evidence.

(3.) ON the other hand, it was submitted by the learned Public Prosecutor that it is an admitted fact that the petitioner is registered owner of the vehicle in question and, therefore, presumption under Section 35 of the Act is to be raised against him to the effect that he knowingly permitted his vehicle to be used for transportation of recovered contraband. It was further submitted that as per Section 35 of the Act the burden of proof is upon the accused to rebut the aforesaid presumption on the basis of evidence produced during the course of trial but in the present case till date no such evidence has come on record from which it can be said that the petitioner has been able to discharge his burden.