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TMI Blog2010 (9) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... gorous imprisonment for a period of 10 years each and to pay a fine of ₹ 1 lac each and in default to undergo further rigorous imprisonment for a period of one year each. 2. According to the prosecution, on 4th June,1994 PW.3, Jagmohan Singh, Station House Officer of Police Station, Mehna along with Assistant Sub-Inspector of Police, Ranjit Singh and other police personnel were on a routine picket duty near the passage leading to the various colonies from Ajitwal. While they were on duty a white Maruti Car, bearing No.PID 6096 was seen coming from the side of village Kokri Kalan through an unmetalled road and when signalled by Jagmohan Singh, it stopped. On enquiry the person driving the car disclosed his name as appellant Dharampal Singh whereas the other person sitting by his side on the front seat disclosed his name as appellant Major Singh. According to the prosecution, the Station House Officer apprised them that they intend to search their car and whether they wish to be searched in the presence of a Magistrate or a Gazetted Officer. Both of them expressed their desire to be searched by a Gazetted Police Officer and accordingly on his wireless message Narinderpal Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndering the recovery of the Narcotic Drugs and Psychotropic Substances is illegal qua the possession of the accused. This shows that the non compliance of the provisions of Section 50 is fatal to the case of the prosecution. 4. Aggrieved by the order of acquittal, State preferred appeal and the High Court by the impugned judgment has set aside the order of acquittal and convicted the appellants as above. The High Court has found that since the recovery was effected from the dicky of the car and not from the person of the appellants the provisions of Section 50 of the Act were not applicable and as such the question of violation thereof did not arise at all. The High Court further held that they were in possession of 65 Kilograms of opium. The finding of the High Court in this regard reads as follows: It is proved from the cogent, convincing, reliable and unimpeachable evidence of Jagmohan Singh, Inspector, Station House Officer, P.S. Mehna, PW-3, the Investigating Officer of this case, and Narinder Pal Singh, Superintendent of Police, PW-2, that Dharampal Singh, accused, was driving Car No.PID 6096 and Major Singh, accused, was sitting by his side, on the front seat, at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... play. We need not go into the aspect whether the possession must be conscious possession. Perhaps taking a cue from the decision of this Court in Inder Sain v. State of Punjab arising under the Opium Act, the learned trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of PW 4, the Head Constable, it is seen that Appellant 3 (Accused 4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused 1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (PW 2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods. The word possession no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leased forthwith, if not wanted in any other case. However, the appeal of the first appellant is dismissed. 9. We do not find any substance in this submission of the learned counsel. Appellant, Dharmpal Singh was found driving the car whereas appellant, Major Singh was travelling with him and from the dicky of the car 65 Kilograms of opium was recovered. The vehicle driven by the appellant, Dharampal Singh and occupied by the appellant, Major Singh is not a public transport vehicle. It is trite that to bring the offence within the mischief of Section 18 of the Act possession has to be conscious possession. The initial burden of proof of possession lies on prosecution and once it is discharged legal burden would shift on accused. Standard of proof expected from the prosecution is to prove possession beyond all reasonable doubt but what is required to prove innocence by the accused would be preponderance of probability. Once the accused plea is found probable, discharge of initial burden by the prosecution will not nail him with offence. Offences under the Act being more serious in nature higher degree of proof is required to convict an accused. It needs no emphasis that the expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. 27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused- appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act. 10. Now, referring to the decision of this Court in the case of Avtar Singh (supra), the same is clearly distinguishable. In the said case, according to the prosecution itself, the vehicle loaded with bags of poppy husk was a truck and when it was stopped one person sitting in the cabin and another person sitting in the back of the truck fled away. The accused in the said case were not the only occupants and in the said background this Court held that they cannot be presumed to be in the possession of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered gunny bag containing opium from the dicky. On weighing the opium came to be 65 Kilograms 100 grams of opium was taken out as sample and the remaining opium was put in five tin boxes which were sealed with the seal of NPS of S.P. Narinderpal Singh and JS of Inspector Jagmohan singh. Box boxes containing opium Ex.P2 to Ex.P6 along its sample parcel were taken into possession vide memo Ex.PB impression of the seal was also prepared which are Ex.P7 and Ex.P8 and both the seals after use were handed over to ASI Ranjit Singh. What have you got to say about it? A. It is incorrect. As part of fair trial, Section 313 of the Code of Criminal Procedure requires giving opportunity to the accused to give his explanation regarding the circumstance appearing against him in the evidence adduced by the prosecution. The purpose behind it is to enable the accused to explain those circumstances. It is not necessary to put entire prosecution evidence and elicit answer but only those circumstances which are adverse to the accused and his explanation would help the court in evaluating the evidence properly. The circumstances are to be put and not the conclusion. It is not an idle formality an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case report pertains to the case in hand, the appellants cannot be held guilty of possessing the opium and have to be acquitted. But, it is not so. Pandit Katara has conveniently left the evidence of this witness in the cross- examination, wherein he has clearly deposed that he cannot tell as to which case the opium related. Otherwise also in the present case 100 grams opium was sent to the Chemical Examiner who found that to be opium. This witness had in mind a case in which 111 Kilograms of opium was sent. Therefore, the report referred to by DW.6 Sarwan Kumar is not remotely connected with the present case. 16. Pandit Katara had further submitted that no independent witness of search and seizure had been examined and on this ground alone the search and seizure is rendered illegal. He submits that rigours of Section 100 of the Code of Criminal Procedure are applicable and there being no independent witness, the case of the prosecution deserves to be rejected. We do not find any substance in the submission of Mr. Katara. The case of the prosecution cannot be rejected only on the ground that independent witnesses have not been examined, in case on appraisal of the evidence on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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