Avtar Singh v. State of Punjab , (2002) 7 SCC 419
Facts : Five persons including the three appellants were charged under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for having conscious possession of 640kg of poppy husk on 7-8-1989 without valid permit or licence. According to the prosecution case, they were all travelling in a truck belonging to Accused 5 in the small hours of 7-8-1989. The vehicle was checked at the canal bridge near Village Dhange at about 1:30 a.m. by PW 2 ASI who was on patrolling duty along with PW 4 (Head Constable) and two other constables. The vehicle was carrying 16 bags of poppy husk. Balbir Chand, Appellant 3 was driving the vehicle. One person who was sitting in the front seat by the side of the driver and another person sitting on the back side of the truck ran away leaving the vehicle. These two persons were said to be Swarna Ram, Accused 3 and Swatantra Kumar (since deceased). The other two sitting at the back i.e . Appellants 1 and 2 and the driver of the vehicle, Appellant 3 were apprehended on the spot. Sixteen gunny bags of poppy husk were recovered. 250 gm was taken out as sample from each bag and sealed. The remaining bags were weighed after sealing and each bag was found to contain 39 kg and 750 gm. The sealed bags and samples were sent to the police station concerned. On the search of person of each of the accused, nothing incriminating was found. PW 5, who was SHO at Police Station Goraya, made further investigation. According to him, ASI Darbari Lal (PW 2) produced the three appellants along with the case property of 16 bags of poppy husk and 16 samples when he was at Bus-stand Goraya for patrolling. He affixed the seals on the bags and sent the samples to the chemical examiner. The report of the chemical examiner was Ext. PX, according to which the contents are "poppy head" containing morphine. The sealed bags were produced in court.
The learned Additional Sessions Judge, Jallandhar, acquitted Swarna Ram for the reason that his identity was not established and also acquitted Amrik Singh, the owner of the vehicle on the ground that there was no proof that he knowingly allowed the vehicle to carry the offensive stuff. Each of the appellants was convicted under section 15 and sentenced to undergo RI for a period of 10 years and to pay a fine of ` 1 lakh and in default to undergo RI for a further period of two years. On appeal, the High Court confirmed the verdict of the trial court.
The more important contention raised before the High Court was that from the mere fact that the appellants were sitting in the truck, it cannot be held that they were in possession of poppy husk. The High Court observed that the appellants did not come forward with the case that they were merely passengers and that they were unaware of what was contained in the bags. The reason for travelling at that odd hour with the offending goods was not stated by any of the accused. Therefore, the High Court concluded that "their close connection of being in possession of the poppy husk must be held to have been established". The High Court also pressed into service the presumption under section 35 of the Act.
Issue: Whether possession of Narcotic Drugs must be conscious possession, for punishment of the accused?
Decision: It was unfortunate that no question was asked about the possession of goods. Having regard to the charge of which the appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under section 114 of the Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption under section 35 which relates to culpable state of mind, without considering the aspect of possession. The trial court invoked the presumption under section 54 of the Act without addressing itself to the question of possession. The approach of both the courts was erroneous in law. Both the courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But the other relevant aspects pointed out above were neither adverted to nor taken into account by the trial court and the High Court. Non-application of mind to the material factors has thus vitiated the judgment under appeal.
Coming to the case of the third appellant who was driving the vehicle, there was one more infirmity in the prosecution case. He would have been charged alternatively for transporting the offensive goods without permit or authorization as required by law; but such a charge was not laid. There was not even a reference to section 8 of the Act. The result is, he too goes scot-free.
For the above reasons, the Supreme Court set aside the conviction and sentence of the appellants and allowed the appeal.