JUSTICE S.K. SAHOO
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.
The facts of the case were that the appellant- Marianus Lakra faced trial in the Court of learned Additional Sessions Judge -cum- Special Judge, Sundargarh for the commission of offenses punishable under Section 376(2)(i) of the Indian Penal Code read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 on the accusation that on 11th June, 2015 between 8.00 p.m. to 9.00 p.m., he committed rape on the victim, who was his step daughter in his own house situated in village Dhengurpani under Rajgangpur police station. It was held that the doctor, who examined the appellant found no injury suggestive of forcible sexual intercourse but since the appellant was examined about 13 days after the occurrence in question, the trial Court had not given any importance to the non-finding of any sign or symptom of recent sexual intercourse during the medical examination of the appellant. The occurrence in question took place on 11th June, 2015 and several witnesses stated that a meeting was convened in the village after the incident came to the fore, but since the appellant did not remain present in the meeting, the villagers could not take any decision and they suggested to file the FIR.
The Court altered the conviction under Section 376(2)(i) of the IPC to one under Section 354-A of the Indian Penal Code. Similarly, the conviction of the appellant under Section 6 of the POCSO Act was altered to one under Section 10 of the POCSO Act. Since Section 10 of the POCSO Act provides for a greater degree of punishment, the appellant was sentenced to undergo R.I. for five years, which is the minimum sentence prescribed for such offense.