VINOD KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) ON 16-11-1978 Section 1. Rachhpal Singh (PW1) the then S.H.0. Police Station Amloh, held picketing on Amloh-Nabha road at a place from where Noorpura link road bifurcated. Excise Inspector Gurdeep Singh (PW 2) and Sarpanch Jangir Singh besides couple of Constables were also members of the picketing party. At about 6.00 P.M., Amar Nath and his son Vinod Kumar came on Royal Enfield motorcycle No. PUC -7070 from the side of Amloh and they were intercepted. Both of them were found carrying 25 kilograms of opium loaded on the motorcycle with them. 15 kilograms of opium was recovered from the basket on one side of the motor-cycle contained in two rexin bags which were tied in a cardboard box, whereas 10 kilograms of opium was recovered from a Jhola hanging on the opposite side and that too was contained in a rexin bag. Three different samples were taken from each of the three rexin bags and samples as well as the remaining bulk of opium were sealed separately and taken into possession. Amar Nath and Vinod Kumar were apprehended at the spot. The samples were duly sent to the Chemical Examiner who found the same to be that of opium.

(2.) ON trial, both Amar Nath and Vinod Kumar were convicted under section 9 of the Opium Act and sentenced to undergo rigorous imprisonment for a period of 2-1/2 years as well as to pay a fine of Rs. 3,000/- each, in default of payment of which, the defaulter was further to undergo rigorous imprisonment for a period of six months, holding that father and son were in joint possession of the opium. Both the accused preferred appeal separately and their two appeals were dismissed by single judgment dated 13-6-1985 by Additional Sessions Judge, Patiala, maintaining both conviction and sentence. Feeling aggrieved by the said judgment, Vinod Kumar preferred Criminal Revision No 831 of 1985 and his father Amar Nath preferred Criminal Revision No 840 of 1985. This judgment of mine shall look after both the said revision petitions, they having arisen out of same recovery.

(3.) I do not see any force in any of two contentions of the learned counsel for the petitioners. Undisputedly both Amar Nath and Vinod Kumar were travelling on motor-bike PUC 7070 at the time of recovery and commodity recovered was visibly loaded on it. In this situation of the matter, it cannot be said that any of the two petitioners was in no way concerned with the opium which formed the subject matter of prosecution or had otherwise dealt with it. It being so, initial onus was discharged by the prosecution to raise presumption under section 10 of the Opium Act. By the interplay of the presumption under Section 10, the rest of the part stood satisfied and it was no longer incumbent on the prosecution to prove all the necessary ingredients of the offence under section 9 including the fact that the accused had conscious possession. That is presumed against them and it is for them to show that there was want of knowledge on their part about the incriminating opium None of the petitioners could do so. Once the petitioners were found concerned with the opium in question so as to render them accountable for it, they will be presumed to have committed an offence under section 9 of the Opium Act unless they can account satisfactorily for it. They having failed to do so, both are liable irrespective of the fact who was driving that small vehicle.