AVTAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Five persons including the three appellants herein were charged under S. 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act') for having conscious possession of 640 Kgs. 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 No. 5 in the small hours of 7-8-1989. The vehicle was checked at canal bridge near the village Dhange at about 1-30 a.m. by PW. 2 ASI who was on the patrolling duty along with PW. 4 (Head Constable) and two other constables. The vehicle was carrying 16 bags of poppy husk. Balbir Chand-appellant No. 3 herein 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 are said to be Swarna Ram Accused No. 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 No. 3 were apprehended on the spot. 16 gunny bags of poppy husk were recovered. 250 gms 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 Kgs and 750 gms. The sealed bags and sample were sent to the concerned Police Station. On the search of person of each of the accused, nothing incriminating was found. P.W. 5, who was SHO at Police Station Goraya, made further investigation. According to him, ASI Darbari Lal (PW 2) produced the three appellants herein along with the case property of 16 bags of poppy husk and 16 samples when he was at the 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 is Ex. PX, according to which the contents are 'Poppy head' containing morphine. The sealed bags were produced in Court.

(2.) 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 S. 15 and sentenced to undergo RI for a period of 10 years and to pay a fine of Rs. 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 contention that S. 50(1) of the Act has not been complied with was rightly negatived by both the Courts on the facts of the case and no contention has been advanced before us in this regard. The contention that independent witnesses were not examined was also negatived holding that at that hour and place, it was difficult to expect any independent witness to be present there.

(3.) 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 S. 35 of the Act.