1. This appeal arises out of the judgment of conviction and sentence dated 18-3-1995 passed by the learned Special Judge, Karnal, whereby the accused-appellant-Avtar Singh (hereinafter referred to as ‘the accused’) was convicted under S. 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’) and was sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1.00 lakh for keeping in his possession 80 kgs. of poppy husk, whereas Balwinder Singh and Harnam Singh were acquitted of the charges framed against them.

2. The story as put forward by the prosecution is that on 31-7-2000 SI Subhash Chand along with other police officials was coming from the village Amupur towards village Brass in a Government jeep in connection with patrolling. When they reached near Kacha path leading to Dera Tehal Singh then one Mahendra jeep without registration number came from the side of village Brass. On seeing the police jeep, the driver of the jeep i.e accused-Avtar Singh applied brakes all of a sudden. On seeing the police, two persons, whose names were later on known as accused-Binder Singh and Baba Harnam Singh, fled away whereas accused-Avtar Singh was apprehended. On search of the jeep two gunny bags containing 40 kgs. each of poppy husk were lying in the rear portion of the jeep. One sample of 500 grams from each bag was taken out and the remaining poppy husk on weigh-ment came to be 39½ kgs. in each bag. The poppy husk as well as the samples were taken into possession. Ruqa was sent to the police station on the basis of which FIR was registered against the accused. Ultimately the remaining two accused were also arrested and all the three were put to trial. Formal charge under S. 15 of the Act was framed against the accused to which they pleaded not guilty and claimed trial.

3. During trial, the prosecution examined C. Pritam Singh (P.W 1), C. Nasrudeen (P.W 2), H.C Baldev Singh the then MHC of the police station (P.W 3), Rangi Ram (P.W 4), Gurcharan Singh (P.W 5), Inspector Hari Kailash the then SHO of the police station (P.W 6), H.C Pawan Kumar (P.W 7), DSP Raj Singh (P.W 8), ASI Ram Niwas (P.W 9) and SI Subhash Chand (P.W 10).

4. When examined under S. 313, Cr. P.C the accused while denying all the incriminating circumstances appearing against them pleaded their false implication in the case and further submitted that they were present in front of the Gurudwara and were performing Kar Sewa, then police jeep came there which went out of order and the police party asked them to push the same but they refused. The police party apprehended them and after concocting a false story, booked them for the present offence.

5. Ultimately, the trial ended in conviction of the accused-appellant-Avtar Singh, whereas Balwinder Singh and Baba Harnam Singh were acquitted of the charge. Hence, this appeal.

6. I have heard Mr. S.P Soi, learned counsel for the appellant-Mr. K.S Godara, learned Deputy Advocate General, Haryana and perused the record of this case very carefully.

7. The prosecution version from the very inception is that when the police party was patrolling, a Mahendra jeep driven by the accused-Avtar Singh came which was stopped. Avtar Singh was driving the said jeep whereas Baba Harnam Singh and Balwinder Singh, about whom they came to know later on, absconded. The accused-Avtar Singh was apprehended and on search of the jeep, 2 bags containing 80 kgs. of poppy husk were recovered. Without delving deep into the fact whether all the formalities as envisaged under the Act stood complied with by the Investigating Officer, learned counsel for the appellant centered around his arguments precisely on the point that’ since recovery was effected from the rear seat of the jeep, whereas the accused is said to be the driver, therefore, he cannot be said to have conscious possession of the said contraband particularly when the persons sitting on the rear seat ran away and later on they were acquitted by the trial Court and also for the reasons that the appellant is not the owner of the jeep.

8. Having given my thoughtful consideration to this contention, it may be observed that from the testimonies of ASI Ram Niwas (P.W 9) and SI Subhash Chand (P.W 10). it has emerged that the appellant was merely a driver, the poppy husk was recovered from the rear seat of the jeep and the persons sitting on the rear seat had absconded, but later on they were arrested and acquitted by the trial Court on the grounds that the evidence proving their presence inside the jeep has not been believed. The learned counsel for the appellant has urged that the accused did not try to run away; the prosecution has not tried to prove as to from where the appellant had brought the poppy husk; the driving licence showing him to be the driver of the jeep, though was allegedly recovered has not been produced or proved on the record. He further contended that assuming for the sake of arguments that he was the driver of the jeep, yet he could not be imputed with the element of conscious possession.

9. The expression ‘possession’ is a polymorphous term which assumes different colours in different contexts. It may carry different meaning in contextually different backgrounds. As was observed in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274 : AIR 1980 SC 52 : (1979 Cri LJ 1390) to work out completely logical and precise definition of possession uniformly applicable to all situations in the context of all statutes. The words ‘conscious possession’ connotes a particular state of mind which is deliberate and intended. No doubt, possession could be constructive or physical but still the possession must be to the knowledge of the offender. In this case, there were three accused, out of which two had run away and the conduct of the persons who ran away itself indicates their knowledge about the contraband and excludes the intention of the driver who had been prior to see the police party. Had the appellant been alone in the Jeep, then the element of possession could be attributed to him but when the vehicle was occupied by various persons and out of them two showed their nefarious designs by running, then the knowledge could be imputed to them. The failure to give any satisfactory explanation by the accused for being present on that place or in the said jeep as driver, does not prove that he was in possession of these articles. A similar proposition arise before the Apex Court in Avtar Singh v. State of Punjab, (2002) 7 SCC 419 : AIR 2002 SC 3343 : (2002 Cri LJ 4330). The facts of the said case reveal that the accused were travelling in the truck belonging to accused No. 5. On checking near village Dhange 16 bags of poppy husk were recovered from the truck. Balbir Chand (appellant No. 3) was driving the truck. A person sitting by the side of the driver and another person sitting backside of the truck ran away leaving the vehicle. The appellants Nos. 1 and 2 and the driver of the vehicle appellant No. 3 were apprehended at the spot. In such situation, the Apex Court while dealing with the issue of possession observed as under (para 6):—

“Possession is the core ingredient to be established before the accused in the instant case are subjected to the punishment under S. 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of C1. (xiv) of S. 2, it is for them to account for such possession satisfactorily, if not, the presumption under S. 54 comes into play. We need not go into the aspect whether the possession must be conscious possession. Perhaps taking clue from the decision of this Court in Inder Sain v. State Of Punjab ((1973) 2 SCC 372) : (1973 Cri LJ 1537) arising under the Opium Act, the learned trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of P.W 4-the Head Constable, it is seen that appellant No. 3 (accused No. 4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (accused Nos. 1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (P.W 2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods. The word ‘possession’ no doubt has different shades of meaning and it is quite elastic in its connection. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants — one of whom was driving the vehicle and other two sitting on the bags were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting In the back of the truck made themselves scarce after seeing the police and the persecution could not establish their identity. It is quite probable that one of them could be the custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods. For instance, if they were labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction under S. 15 may not be warranted. At best, they may be abettors, but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were travelling in the vehicle at the odd hours, is one strong circumstance that can be put against them. A case of drawing presumption under S. 114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but, the fact remains that in the course of examination under S. 313, Cr. P.C not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination under S. 313, Cr. P.C it is well known is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under S. 114 of Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle.”

10. In this case also, no investigation regarding the fact as to for what purpose the two other accused were travelling in the jeep has been established. No particular question had been asked to the accused if he had loaded the bags in the jeep or that he was in possession and knowledge of the contents of the bags. In the absence of such evidence, no presumption under S. 54 of the Act without addressing itself to the question of possession could be drawn against the accused.

11. Full Bench of this Court in case Kashmir Singh… v. State Of Punjab…, 2006 (2) RCR (Criminal) 477 observed as under:—

“9. Presumption of culpable mental state is something that a Court shall presume. This necessarily means that the Court shall presume it as a fact that the accused had the culpable mental state and it shall be recorded that such culpable mental state has been proved. Needless to say the accused can plead in defence that he had no such mental state but after the presumption has been raised he shall have to prove his defence that as a fact he had no mental state. He cannot rely merely on preponderance of probability.”

12. Firstly, it was the prosecution who was to establish the conscious possession only then the presumption under S. 54 of the Act could be raised, but the prosecution has failed in its obligation.

13. Consequently, while holding that the prosecution has failed to establish the element of possession regarding two bags of poppy husk as recovered from the jeep, which was allegedly driven by the accused, interference in the impugned judgment has become inevitable at my end.

14. For the foregoing reasons, I accept the appeal, set aside the impugned judgment and acquit the accused-Avtar Singh of the charge framed against him.

15. He is ordered to be set at liberty forthwith if not required in any other case. Fine, if deposited by him, be refunded.

16. Appeal allowed.