AMREEK SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The learned Addl. Sessions Judge, Jaipur City, under his judgment dated 10/04/1989, affirmed the conviction of each of the accused-petitioners under Section 120-B, IPC read with S.9 of the Opium Act,1878 (for short, the Act), but reduced the sentence of each of the accused-petitioners to two years rigorous imprisonment and a fine of Rs. 5,000.00, or in default of payment of fine to further suffer rigorous imprisonment for six months under each of the counts. The substantive sentences were ordered to run concurrently. The learned Magistrate had convicted each of the accused petitioners for the offences under S.120B, IPC and S. 9 of the Act and sentenced each of them to rigorous imprisonment for 3 years and a fine of Rs. 5000.00 under each count, or in default of payment of fine to further suffer rigorous imprisonment for six months.

(2.) The facts in brief of the case are that P.W.5 Dhanraj was the Dy. Superintendent of Police of Preventive Control Narcotics Bureau on 30/05/1980. On that day he received information from one of his sources that in Truck No. MTS-1630 shall lift opium in between Mandsor and Pipaliya and will take it to Delhi. He along with other personnels of Narcotics Bureau as well as two officials of C.B.I. namely Shri Mishra and Ram Murti, Dy. S.P. and Sub Inspector respectively formed a raid party and reached Satya Khanda from Neemach. They were waiting for the arrival of the truck and when they saw the truck No. MTS-1630 which came at about 5-45 a.m. they stopped it and it was noticed that all the three accused-petitioners were seated and Amrik Singh was driving the truck. A search was taken and three bags, one beneath the seat of the driver and two under the case of biris, were recovered. The total weight of opium was more than 66 kgs. Samples were taken and they were sealed. Before the truck being searched, there was smell of opium felt by the officials of Narcotics Department. There is no dispute that on examination by the Central Forensic Science Laboratory, it was found that they contained morphine. Thereafter, a charge-sheet was filed against the accused petitioners and each of them pleaded not guilty and claimed to be tried. After the closure of the prosecution evidence each of them was examined under S.313, Cr. P.C. to explain the circumstances appearing against them and they did not dispute that they were the occupants of the truck, but they come out with the plea that one Sardar whose name was not disclosed had boarded the truck in the way and the bags recovered might be belonging to him. They disowned the bags of opium. They examined two witnesses in defence. But only gave their written statements wherein a plea was raised that each of them was coming in the truck from Baghera on 31-5-1982 and the truck was loaded with the cases of Biri. On the way from Nimbahera one man boarded the truck and he was to go to Bhilwara. They asked him to sit over the truck. When they reached near Satya Khanda, the truck was stopped by the officials of Narcotics Department and it was stopped near a hotel. The man who had boarded the truck made good his escape and no opium was recovered from beneath the seat of the driver. Learned trial court as aforesaid convicted and sentenced the accused-petitioners and on appeal their sentence was reduced but the conviction was maintained as aforesaid by the learned appellate court.

(3.) It may be stated that the finding of the courts below has been arrived at on the material on record that 3 bags of opium were recovered from the accused-petitioners, one from beneath the seat of the driver and two from the cases of biris. According to the learned counsel for the petitioner P.W.12 B.N. Mishra, who was Dy. S.P. was not present there. I have gone through the material on record and merely on the ground that there are some contradictions, I am unable to say that the findings arrived at by the courts below that he too was in the raid party calls for no interference. Three bags were recovered, two from the packets of biris and the third from beneath the seat of the driver. It may be stated that in the present case despite the contention of the learned counsel to the contrary, the possession of all of them will be taken to be proved. The Supreme Court in the case of Ashiq Miyan v. State of Madhya Pradesh, AIR 1969 SC 4 was dealing with a case where more than one person was in possession of the house and a large quantity of opium was recovered from the house. The question arose whether the accused persons were in conscious possession of the opium recovered from their house. The court said that in the facts and circumstances of the case that all the three persons can be said to be in conscious possession and the conviction was upheld by the Supreme Court. In the case of Karam Singh v. State, 1981 Cri LJ NOC 123 (Raj), I had the occasion to examine a case under the Opium Act. I had placed reliance in the aforesaid case on the case reported in 1973 Cri LJ 1537. It was held by this Court in Karam Singh's case (supra) that what the prosecution has to prove is that the accused was in some manner connected with the opium or dealt with it. The necessary animus for offence u/S. 9 can be inferred from the facts of a particular case. Further, under S. 10 when the prosecution has shown by evidence that the accused has dealt with opium or has physical custody of the same or is directly connected with it the onus shifts on the accused to prove by preponderance of probability that he is not knowingly possessing the opium. The court further said that where the contraband opium in large quantity was being transported in a truck, the driver of the truck sitting in the driver's cabin and the person sleeping over the bags containing opium in the cabin of the truck would be deemed to be connected with the opium transported in the truck and when they failed to furnish any explanation for the presence of the opium in the truck, they would all be guilty of an offence u/S. 9. The aforesaid case applies on all fours to the facts and circumstances of the present case inasmuch as three accused-petitioners were found in the cabin of the driver, two of them were said to be alternative drivers and the third driver. Three bags of opium were recovered, one from beneath the driver's seat and two from cases of biris. I am, therefore, of the opinion that they have been rightly convicted by the learned courts below. It can be said that by preponderance of probability the accused-petitioner could not prove that they were not knowingly possessing the opium. It may be stated that when three persons are the known occupants of the truck, it can only be within their special knowledge as to how the opium came in the truck in such a large quantity, more so when one of the bags was found beneath the driver's seat. In my opinion the accused petitioners have been rightly convicted under S. 120B, IPC and S. 9 of the Opium Act.