Raghvinder @ Raghvinder Lal v. State of Punjab

Mr. B.S. Sra, Additional Advocate General, Punjab. **** DAYA CHAUDHARY, J. The present revision petition has been filed against the order dated 6.4.2009 passed by Judge Special Court, Sangrur, vide which, an application under Section 319 Cr.P.C. for summoning the accused who were kept in column No.2 of the report under Section 173 Cr.P.C. for facing trial along with the main accused was allowed and the petitioner was summoned under Section 319 Cr.P.C. to face the trial. Brief facts of the case are that on 12.3.2006, a truck bearing registration No. HR-45-4832 was apprehended on the basis of secret information and 50 bags of poppy husk weighing 35 kgs each were recovered by the police. Jaspal Singh @ Jassa driver of the truck was apprehended on the spot. During investigation, the police came to the conclusion that on the date of alleged recovery, the petitioner was not owner in possession of the said truck and he was placed in colum No.2. Crl. Revn. No. 2080 of 2009 (2) However, the police has reached to the conclusion that on the date of alleged recovery, Gurpreet Singh was owner in possession of the said truck and an application was moved by the prosecution for obtaining arrest of said Gurpreet Singh. After filing of challan against Jaspal Singh @ Jassa, the driver of the truck, charges were framed. After recording the statement of SI Harinder Singh (PW-6) an application under Section 319 Cr.P.C. was moved by the public prosecutor for summoning the accused who was placed in column No.2, which was allowed by the trial Court vide order dated 6.4.2009 and the petitioner was summoned. Summoning order dated 6.4.2009 is the subject matter of the challenge in the present revision petition. Learned counsel for the petitioner submits that a detailed investigation conducted by the police establish that on the date of alleged recovery of poppy husk from the said truck, the petitioner was neither its owner nor was having any control over it in any manner. The said truck was sold by the petitioner to one Pawan Kumar on 3.2.2006, who further sold it to one Gurpreet Singh on 7.3.2006. There is no other evidence to connect the petitioner with the alleged offence or recovery of the contraband. Learned counsel for the petitioner further submits that the motor vehicle is an moveable property and its ownership passes on to the buyer as soon as the payment is made to the seller. It has also come on record that Pawan Kumar had taken possession of the said truck on

3.2.2006 even though the ownership was not transferred with the Registration Authority. Learned counsel also relied upon the provisions of Sections 19 and 20 of the Sale of Goods Act to support his contention. It is also the argument of the learned counsel for the petitioner that the trial Court has passed the summoning order contrary to settled principles of law. Power under Section 319 Cr.P.C. can only be exercised only on the basis of some fresh evidence brought before the Court but in the present Crl. Revn. No. 2080 of 2009 (3) case no such evidence has been brought before the trial Court. The trial Court while passing summoning order has not recorded any such finding as to whether evidence on record may result into conviction of the petitioner. Learned counsel for the respondent-State submits that the petitioner was the registered owner at the time of alleged recovery and documents recovered from the vehicle connects the petitioner with the alleged crime. He further contends that the petitioner being put in column No.2 of the report is also required to face trial along with co-accused, who are already facing trial. I have heard the arguments of learned counsel for the petitioner and have also gone through the complaint as well as summoning order. Admittedly, the alleged recovery of the contraband was effected from truck No. HR-45-4832 and the driver Jaspal @ Jassa was apprehended at the spot. Now the question for consideration before this Court is whether on the basis of truck which was sold to Pawan Kumar and subsequently to one Gurpreet Singh, the petitioner can be held liable or not? The investigation was conducted by the police, wherein, the statement of the preset petitioner was recorded. He has specifically stated that the said truck was sold to Pawan Kumar on 3.2.2006, who had further sold it to Gurpreet Singh on 7.3.2006. An affidavit of Pawan Kumar dated

3.2.2006 specifically mentioning therein that the said truck has been purchased by him from the petitioner on 3.2.2006 and the possession of the same had also been taken. The photo copy of the entry of the register of notary public shows attestation of the affidavit at serial No. 239 dated

3.2.2006, clearly showing that the petitioner has sold the truck to Pawan Kumar. This fact also finds corroboration from the statement of Rajinder Kumar, brother of the petitioner, who also stated that the petitioner had Crl. Revn. No. 2080 of 2009 (4) sold the said truck to Pawan Kumar. Pawan Kumar has also stated before the police during investigation that he had further sold the truck on

7.3.2006 to Gurpreet Singh. The copies of the agreement between the parties and statement of Leela Singh, who witnessed the agreement were also given to the police which shows that the transaction of sale has taken place and at that time the present petitioner was not owner of the said truck. At the time of recovery of alleged contraband, it was only Gurpreet Singh, who was owner in possession of the said truck and was kept in column No.2 in the report under Section 173 Cr.P.C. After filling of challan against Jaspal Singh @ Jassa, charges were framed against him only. It is only on the basis of statement of SI Harinder Singh (PW-6), an application under Section 319 Cr.P.C. was moved by the public prosecutor for summoning of the present petitioner. The said application was allowed without giving any finding with regard to fresh evidence before the trial Court. Even on the basis of statement of six prosecution witnesses, the petitioner has not been connected with alleged recovery of poppy husk and the truck in dispute has already been sold much prior to the alleged occurrence. Hon'ble the Apex Court in case of Sarabjit Singh and another Vs. State of Punjab and another 2009 (4) RAJ 144 held that a person should be summoned as an additional accused only when Court finds that the evidence on record is such which would reasonably lead to conviction of person sought to be summoned. In the present case no such finding has been recorded by the trial Court as to whether evidence on record may result into conviction of the petitioner or not. Power under Section 319 Cr.P.C. is although discretionary jurisdiction to summon a person as an additional accused to face trial but this is an extraordinary power which is conferred on the Court and the same should be used very sparingly and only if the compelling reasons exists for taking cognizance against the persons against whom the action has not been taken. This Crl. Revn. No. 2080 of 2009 (5) view has been support by the Supreme Court in the judgment in Municipal Corporation of Delhi Vs. Ram Kishan Rastogi 1983 (1) RCR (Criminal) 73 SC. The contention of learned counsel for the petitioner has also merit as the truck which is motor vehicle is a moveable property. Its ownership passes on to the buyers as soon as the payment is made to the seller. It has been proved on record that the truck was sold by the present petitioner to Pawan Kumar and possession of that truck was also taken by him and even though the ownership was not transferred with the registration authority. The petitioner cannot held liable in any manner with regard to use of truck after 3.2.2006. Section 19 and 20 of the Sales of Goods Act are reproduced as under:- “19. property passes when intended to pass.- (1) where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case. (3) Unless a different intention appears, the rules contained in Sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.” “20. Specific goods in a deliverable stage.- where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is Crl. Revn. No. 2080 of 2009 (6) immaterial whether the time of payment of the price or the time of delivery of the goods or both, is postponed.” From the facts mentioned above, it is clear that the petitioner was neither owner nor was having any control over the said truck on the date of incident when the alleged recovery of contraband was made. Moreover, the trial Court has not found any additional evidence to connect the petitioner with the alleged recovery. In view of the reasons mentioned above, the revision petition is allowed and order dated 6.4.2009 summoning the petitioner as an accused is, hereby, set aside. (DAYA CHAUDHARY) JUDGE Note:-Whether this case is to be referred to the Reporter .......Yes/No