Page No.# 1/6 GAHC010063552026 2026:GAU-AS:9081 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/718/2026 RATAN DEB S/O LATE BADAL DEB R/O AD NAGAR, ROAD NO. 1, P.O. AND P.S. ARUNDHUTINAGAR, DIST. WEST TRIPURA, TRIPURA. VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR A DASGUPTA, MR J K SHARMA,MR. S DUTTA,MS S MOCHAHARI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 23.06.2026 Heard Mr. S. Dutta, learned counsel for the petitioner. Also heard Mr. M.P. Goswami, learned Additional Public Prosecutor for the State. 2. This is an application under Section 482 of BNSS, 2023, for granting pre- Page No.# 2/6 arrest bail to the petitioner in connection with BCR P.S. Case No. 169/2023, under Section 22(c)/25/29 of NDPS Act corresponding to Special (NDPS) Case No. 104/2023 in the Court of Sessions Judge, Sribhumi. 3. The prosecution case briefly is that on 17.08.2023 one Tata 6 wheeler truck bearing Registration No. AS 01 PC 9531 was found proceeding from Guwahati towards Tripura and was intercepted by the police during naka checking and 6100 numbers of bottles of Codein Phosphate Eksuf cough syruo weighing 732 kgs were recovered from under several bags of potatoes within a special secret chamber on the body of the truck. The truck was being driven by one Biswajit Biswas. 4. It is submitted on behalf of the learned counsel for the petitioner that the petitioner has been implicated in the present case as he is the registered owner of the truck. However, the petitioner being the owner of the truck had entrusted the same to the arrested accused Biswajit Biswas to drive the vehicle as a driver. It is the further submission that the petitioner had no knowledge that such contraband was being transported in the truck driven by the arrested accused/driver. It is further submitted that as per Section 35 of the NDPS Act, presumptions of culpable material has to be proved beyond reasonable doubt and there is no material to show that the petitioner had knowingly allowed his vehicle to be used for transporting contraband drugs. Page No.# 3/6 5. The learned counsel for the petitioner has also relied on the decision of the Hon’ble Apex Court in Bhola Singh vs. State of Punjab reported in (2011) 11 SCC 653, wherein, it has been held as follows:- “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 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 Page No.# 4/6 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 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 cannot by any stretch of imagination fasten him with the knowledge of its misuse by the driver and others.” 6. The learned Additional Public Prosecutor for the State submits that the fact that the petitioner is the owner of the vehicle in which the contraband was found would prima facie indicate his involvement and therefore, he would not be entitled to bail in view of Section 37 of the NDPS Act. 7. Upon perusal of the Case Diary, it is seen that other than the fact that the petitioner is the owner of the vehicle in question that appears to be no other materials against him. A perusal of the statement of the arrested accused/driver would also show that he has not implicated the petitioner as having any role in the transportation of the contraband. Page No.# 5/6 8. The owner of a truck which is a commercial vehicle may not always have knowledge of what is being carried in his vehicle when the truck is plying long distances while transporting goods from one place to another, which involves many hands and contraband goods may be concealed in a truck without the knowledge of the owner who is not present alongwith the truck during its journey to different destinations. Therefore, there cannot be a presumption that the owner of the vehicle has knowingly allowed the vehicle to be used for such kind of activities, in the absence of any other material to support such presumption. 9. In the aforesaid case of Bhola Singh (Supra) cited by the learned counsel for the petitioner, the presumption under Section 35 of NDPS Act was not applied on the petitioner/owner as the initial burden to prove that the petitioner had the knowledge that the vehicle he owned was being used for transportation of narcotics was not discharged by the prosecution, despite, the fact that he had given a wrong address. 10. In the instant case as already discussed herein above, there is no other material to lead to a presumption that the owner/petitioner had allowed his vehicle to be misused by the driver. 11. Consequently, this Court is of the view that based on the material on the record, there is reasonable ground to believe that the petitioner is not guilty of Page No.# 6/6 the alleged offence of transporting commercial quantity of contraband drugs or that he is likely to indulge in such offence if released on bail. 12. Accordingly, the prayer for bail is allowed. 13. It is provided that the petitioner in the event of his arrest in connection with BCR P.S. Case No. 169/2023, under Section 22(c)/25/29 of NDPS Act corresponding to Special (NDPS) Case No. 104/2023 in the Court of Sessions Judge, Sribhumi shall be released on pre-arrest bail on furnishing a bail bond of Rs. 2,00,000/- with two (2) sureties each of like amount to the satisfaction of Arresting Authority/Court. It is further provided that the petitioner shall appear before the learned Trial Court within 10 days from today, and in the event of failure to do so, the order of present bail shall cease to remain in force. 14. The petition is disposed of accordingly. JUDGE Comparing Assistant