AVTAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS petition under section 482,cr. P. C. has been filed by Avtar Singh accused for quashing the charge framed against him by the Sessions Judge, Bikaner, for the offence under section 21 read with sec. 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'the Act') The accusations against the petitioner are that on Sept. 21, 1939, he took the co-accusad Major Singh and others from Jalandhar to Pawli, where 320 Kilograms of Heroin brought from Pakistan was recovered and that he was to carry the same, in Maruti car D. B. C. 6496, onwards to enable the co-accused to sell the same.

(2.) THE case of the prosecution, in short, was that the petitioner was the driver of the aforesaid Maruti Car No. D. B. C. 6496. This car was seized by the police on September 23, 1988 from Gharsana New Mandi. As per the prosecution, on Sept. 20, 1988, Shri Pritam Singh, Station House Officer, Police Station Pungal, on some information furnished to him by Maloo Ram, Assistant Sub-Inspector of Police, formed an interceptive party consisting of the B. S. F. and police officials and followed the tracks of men and camel on the Indo-Pak border which leading him to village Chok-4 Pawli. THE track stopped there. THE Station House Officer surrounded the village and halted during the night there. On the next morning i. e. on September 21, 1988, he found that a jeep R. J. U. 6852 was being loaded with bags in the agricultural field of Nicthhtar Singh. Eight persons, were involved in the loading operation. Seeing the police party, three persons, namely, Nishansingh, Ganni alias Gurnam Singh and Balkar Singh fled away while the remaining five namely, Major Singh, Gurnam Singh, Nichhatar Singh, Balvindar Singh and Kundanlal were apprehended at the spot. Kundan Lal was the driver of the jeep. Bags containing 311 packets of heroin were seized at the spot. A case under section 21 and 22 of the Act was registered against the accused. During investigation, it transpired that the packets of heroin were brought to Pawli from Pakistan on camels by Ganni and Sareef and it was to be taken to Bombay, to be delivered to Raheesh Khan, a Pak national at the Minerwa Hotel, Bombay. THE petitioner is not one of the eight found involved in loading the heroin in the jeep. He is not the driver of the jeep used to carry the heroin from Pawli. He was the driver of Maruti Car No D. B. C. 6496 which was found in village Gharsana New Mandi and was seized from there. THE prosecution case against him, as shown in the charge, is that he brought Major Singh and others from Jalandhar to Pawli and was engaged to carry them back in the Maruti car.

(3.) AS regards the offence under section 29 the prosecution has to show that the accused was a party to the conspiracy to commit an offence under Chapter IV of the Act. The gist of the offence of criminal conspiracy is the existence of an agreement between two or more persons to commit an offence. True, it is difficult to get direct evidence of an agreement between the parties and, therefore, the Courts held that the charge of conspiracy can be proved by circumstantial evidence. But then, the circumstances relied upon must be con- elusive in nature and satisfy the test laid down by the Supreme Court in respect of circumstantial evidence. In other words the circumstances must be consistent and consistent only with the hypothesis of the guilt of the accused. They should exclude the possibility of the accused being innocent. In the present case the allegations concerning the existence of the conspiracy, as mentioned in the charge sheet, are to the effect that- ************