The facts of the case were that the appellants- Sibaram Swain (CRLA No.580 of 2013) and Ratnakar Swain (CRLA No.44 of 2014) faced trial in the Court of learned Sessions Judge -cum- Special Judge, Ganjam, Berhampur for an offense punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. They were found guilty by the learned trial Court of the offense charged and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lakhs vide order dated 27.11.2013. The learned trial Court held that the prosecution established the presence of the appellants in the auto-rickshaw followed by the recovery beyond reasonable doubt and therefore, the presumption as to the culpable mental state of both the appellants got raised, pushing the onus on them to prove the non-existence of such mental state for the same offense by proving their absence of intention, motive, knowledge of a fact and belief in or having any reason to believe as per the required mode with the standard of proof beyond a reasonable doubt.

The issue before the Court was whether there was a statutory infraction of the provision under Section 42 of the NDPS Act?

The Court held that mere ownership of the vehicle in which transportation of contraband articles was found is by itself not an offense. The words ‘knowingly permits’ are significant. The expression ‘knowingly’ has to be given due weight. As per the Chambers Dictionary, 12th Edition, ‘knowingly’ means knowingly, consciously, intentionally. In the case of Raghunath Singh v. State of Madhya Pradesh, 1967 Maharashtra Law Journal 575, a three-Judge Bench of the Supreme Court held that the words ‘knowing’ or ‘knowingly’ are used to indicate that knowledge as such must be proved either by positive evidence or circumstantially before mens rea can be established. Further, the words, ‘knowing’ or ‘knowingly’ were more forceful than the words ‘has reason to believe’, because those words insist on a greater degree of certitude in the mind of the person who is set to know or to do the act knowingly.

Further, it is for the prosecution to establish that with the owner’s or driver’s knowledge, the vehicle was used for the commission of an offense under the N.D.P.S. Act. In the case of Karnail Singh v The state of Haryana reported in (2009) 44 Orissa Criminal Reports 183, the Supreme Court held that the material difference between the provisions of Sections 42 and 43 of the N.D.P.S is that Section 42 requires recording of reasons for belief and for taking down of information received in writing about the commission of an offense before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article, etc. and arrest of a person who is found to have any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.