SALIM Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This order will dispose of Crl. Misc. No.6179 of 2007 filed by the applicant Salim and Crl. Misc. No.32461 of 2007 filed by the applicant Sohan Lal seeking suspension of sentence of imprisonment during the pendency of the appeal. The applicants Salim and Sohan Lal along with one Kamaljit Singh alias Pappu were tried for the offence under Section 15 of the NDPS Act. All the accused were found in possession of 16 bags of Poppy Husk each containing 38 kgs 250 grams. The contraband was recovered while Kamaljit Singh accused was driving the tractor trolley and Salim and Sohan Lal (applicants)were sitting on the trolley. The contraband was found to contain poppy husk.

(2.) It is contended by the learned counsel appearing for the applicants that the sentence of Kamaljit Singh alias Pappu who was driving the tractor trolley has been suspended by this Court vide order dated 19.6.2001 passed in Criminal Misc. No.22664 of 2001 in Crl. Appeal No.685-SB of 2001. Applicant Salim as per the custody certificate dated 30.12.2006 has undergone imprisonment for a period of six years, two months and twelve days. During the period of imprisonment the applicant Salim has not availed of any parole. Applicant Sohan Lal has undergone imprisonment of five years and nine months as per custody certificate dated 6.3.2007. This is excluding period of three months and twenty two days of the parole period availed by him. It is contended that keeping in view the observations of the Division Bench of this Court in Daler Singh Vs. State of Punjab, 2007(1) RCR (Criminal) 316, the applicants are entitled to the sentence of their imprisonment being suspended. Learned counsel appearing for the State has opposed the respective applications seeking suspension of sentence. It is submitted that substantial quantity of poppy husk was recovered and there is no chance of acquittal of the applicants. It is, however, not disputed that both the

(3.) applicants have undergone more than five years of imprisonment. I have given my thoughtful consideration to the contentions of the learned counsel appearing for the parties. It is not in dispute that as per the prosecution case the applicants were sitting on the tractor trolley and that Kamaljit Singh alias Pappu was driving the tractor. The said Kamaljit Singh alias Pappu has been granted the concession of bail by suspending his sentence vide order dated 19.6.2001. It is a question to be gone into at the time of hearing the appeal whether the applicants can be said to be in conscious possession of the contraband. In Avtar Singh Vs. State of Punjab, 2002(4) RCR (Criminal) 180, it was held by the Supreme Court in a case where two accused were sitting on the bags and one accused was driving the truck that it was not proved that those sitting on the bags had custody and control of the bags. It was observed that the persons who were merely sitting on the bags in the absence of proof of anything more cannot be held to be in possession of the goods. Therefore, this aspect as to whether applicants were in conscious possession of the contraband is to be gone into at the time of hearing of the appeal and it would be pre-mature to go into this aspect at this stage.