HARBANS SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS appeal is directed against the conviction and sentence imposed on the appellants by the learned ASJ Ludhiana in Sessions Case No. 14 of 1988 dated 5.12.1989. The case of the prosecution is that on 27.6.87 at about 6.05 p.m. the SHO received a secret information that the accused were transporting poppy husk in a truck bearing No. DEL 2415 driven by Sewa Singh. Accordingly a nakabandi was held and the truck coming from the side of Gobindgarh was stopped during midnight and the accused Harbans Singh and Surjit Singh were sitting in the truck driven by Sewa Singh. On a search of the truck it was found that the truck was carrying 140 bags of poppy husk each containing 40 kgs of poppy husk. The same was recovered under the recovery memo and after completion of the investigation the accused were charge-sheeted. The driver of the truck Sewa Singh was declared as a proclaimed offender. The case was proceeded against the appellants who are accused Nos. 1 and 3. The learned ASJ framed charge against the accused- appellants for the offence under Section 15 of the NDPS Act (for short the Act). In order to prove the guilt of the accused the prosecution examined 4 witnesses and marked the documents. On a consideration of the evidence on record the learned ASJ convicted the appellants for the offence under Section 15 of the said Act and sentenced them to undergo RI for a period of 10 years and to pay a fine of Rs. 1 lac on each of the accused-appellants. Aggrieved by the same the appellants preferred this appeal.

(2.) FROM the evidence on record there cannot be any dispute that the accused- appellants have been travelling in the truck but the question is whether they were responsible for transporting the poppy husk in the truck. There is no evidence on record to show that poppy husk belonged to the accused and that they were transporting the same. Unless the prosecution proves that the accused were either transporting the contraband themselves or they were in conscious possession of the poppy husk they are not liable to be convicted. Evidence of the PW1 is of no use. He only deposed that the samples bore the seal 'SK'. PW2 only marked his affidavit. He is also a formal witness. PW3 is the ASI who deposed that a secret information was received at the police station at about 6.05 p.m. and accordingly a nakabandi was held in the area of city Khanna at a chowk and at about midnight truck bearing No. DEL-2415 came from the side of Gobindgarh and the same truck was stopped and Sewa Singh was driving the truck and Harbans Singh (A1) was sitting on the left side of Sewa Singh and Surjit Singh (A3) was sitting on the back side portion of the truck. Thereafter 140 bags loaded in the truck were seized under the recovery memo. PW4 also deposed to the same facts. On the basis of the evidence of PWs. 3 and 4 there cannot be any doubt that 140 bags of poppy husk were seized from the truck bearing No. DEL-2415. There cannot also be dispute of the fact that Sewa Singh who is absconding was driver of the truck at the time of seizure but there is nothing in the evidence of PWs. 3 and 4 that the accused- appellants were transporting the poppy husk in the said truck. There is also nothing on record to show that the poppy husk belonged to them. There is also no evidence to show that they were in conscious possession of the poppy husk. In the absence of any evidence connecting the appellants with the poppy husk which was being transported in the truck the accused-appellants cannot be convicted for the offence under Section 15 of the Act merely because they were travelling in the truck. May be they were travelling in the truck as passengers. Further A3 was not identified by any witness. PW4 categorically stated that none of the members of the police identified Surjit Singh (A3). He also stated that he did not know the physical features of A3. Unless the prosecution establishes the nexus between the accused and the poppy husk which were being transported in the truck the accused-appellants cannot be convicted for the offence under Section 15 of the Act.