The appellant has preferred this appeal under Section 374 (2) of the Criminal Procedure Code feeling aggrieved by the impugned judgment dated 6.3.2003 passed by the Special Judge (under N.D.P.S. Act), Mandsaur in Special Case No. 12/1999 whereby die appellant/accused has been found guilty under section 8/18 (c) of the narcotic drugs & psycho tropic substance act, 1985 (hereinafter referred to as the n.d.p.s. act) and has been sentenced to 10 years rigorous imprisonment with fine of Rs. 1,00,000/- and in default of payment of fine, further ordered to suffer imprisonment for 2 years. 2. Brief facts of the case are that on 7.11.1998 Assistant Police Sub Inspector Bhurelal Sharma posted at Police Station Shyamgarh received secret information that two persons were coming from village Mataguradiya and were having contraband article with them for its sell to some body at Shyamgarh Railway Station. On receipt of this information, concerning Police Officer prepared panchnama and also recorded the information in the daily diary, called two independent panch witnesses and also informed superior officer with regard to the aforesaid information as provided under Section 42 of the N.D.P.S. Act and thereafter reached on the place as has been informed to him. After some time, two persons came there on cycle. After disclosing identity, Police Officer asked their name; one person who was sitting on the carrier of the cycle, his name was known as Ratanlal present appellant and another person who was cycling, his name was known as Kaluram. After giving them notice as provided under Section 50 of the N.D.P.S. Act, on search, one bag was bound on the handle of the bicycle concerned wherein on search, seizing officer found powder appears to be smack. On weight, total quantity of powder found to be 1 kilogram. Out of which two samples of 10 grams each were taken out. Samples as well as seized article were sealed properly. Necessary panchnama was prepared. Thereafter returned back to the Police Station and informed the superior officer for the aforesaid search and seizure as provided under Section 57 of the N.D.P.S. Act and registered a case against present appellant/accused Ratanlal as well as against co-accused Kaluram under Section 8/21 (c) of the N.D.P.S. Act. Deposited the seized article as well as the sample packets in the store room of the concerning Police Station for safe custody. Thereafter, sent one sample packet of the seized article for chemical analysis to Forensic Science Laboratory at Indore from where report Ex. P-29 received wherein the sample of the seized article is found to be die acetyl morphine (hereoin) as defined under the N.D.P.S. Act. After due investigation, charge sheet has been filed before the Trial Court against the present appellant as well as co-accused Kaluram. Both the accused persons denied the charges levelled against them and their defence is of false implication by the Police in this case. Learned Trial Court, after due appreciation of the entire prosecution evidence on record, held both the accused Kaluram and Ratanlal guilty under Section 8/21 (c) of the N.D.P.S. Act, but acquitted two other co-accused Hukum Singh and Prabhulal and sentenced present appellant as well as co-accused Kaluram as stated hereinabove. Feeling aggrieved by which, present appellant Ratanlal has preferred this appeal whereas Kaluram has not filed any appeal. 3. I have heard the learned counsel for the appellant Shri A.K. Saraswat and Shri G.S. Chouhan, Government Advocate for the State and perused the record. 4. It is submitted by the learned counsel for the appellant that prosecution has failed to prove the conscious possession of the present appellant on the contraband article. Present appellant was found only sitting on the carrier of the concerned bicycle whereas the bicycle belonged to co-accused Kaluram and on that cycle, concerned bag, which contained contraband article heroin was seized by the Police, therefore, appellant claims that contraband article was found to be seized from the possession of the co-accused Kaluram and present appellant Ratanlal cannot be held guilty for the aforesaid possession of co-accused Kaluram. There are also no material linking circumstances proved by the prosecution on which basis, this can be inferred that both these accused i.e. present appellant Ratanlal and co-accused Kaluram were having jointly doing the business for the aforesaid sale and purchase of the contraband article. On the basis of that, possession of co-accused Kaluram cannot be presumed joint possession of the present appellant Ratanlal on this contraband article and, therefore, learned Trial Court has committed error in holding the present appellant guilty for the offence punishable under Section 8/21 (c) of the N.D.P.S. Act, therefore, prayed for setting aside of the impugned judgment passed by the Trial Court and for acquittal of the appellant/accused. 5. In reply, learned Government Advocate while supporting the impugned judgment submits that both the accused were found on the spot. Concerned article was seized from the joint possession of them and on the basis of the overall prosecution evidence on record, learned Trial Court has rightly held that seized contraband article was seized from the joint possession of both the accused persons and thus rightly found them guilty for the aforesaid offence punishable under Section 8/21 (c) of the N.D.P.S. Act and no substantial or material grounds are available for any interference in the impugned judgment, therefore, prayed for dismissal of the appeal. 6. To bring home the charge as levelled against the present appellant, it is an admitted fact that co-accused Kaluram was the person who is the owner of the concerning bicycle. It is also an admitted fact that he was cycling at the relevant time. Presence of the present appellant is only that he was sitting on the carrier of the concerned cycle. So, only presence of the appellant accused is proved by the prosecution on the spot and on the basis of that only, joint possession of the present appellant on the contraband article cannot be inferred. 7. On this, the prosecution has examined seizing officer Bhurelal Sharma (P. W. 11), who at the relevant time was posted as Assistant Sub Inspector of Police at Police Station, Shyamgarh. After recording of the secret information in the daily diary and after preparation of the necessary panchnama Ex. P/7 and after sending the information to the superior officer as per Ex. P-1 reached on the spot and after some time, he found that Kaluram came there on the bicycle and the present appellant Ratanlal was sitting on the carrier of the bicycle. The seizing officer also admitted the fact that bag which was on the handle of the concerned cycle which contained contraband article heroin is on the cycle and not in the hand of the present appellant Ratanlal. On the basis of the aforesaid admission, only inference which can be drawn is that contraband article was in possession of co-accused Kaluram only, who is the owner of the bicycle and who was cycling at the relevant time. Merely on the basis of that, present appellant/accused was sitting on the carrier of the cycle his possession on the contraband article cannot be presumed and on the basis of that also, their joint possession on the contraband article cannot be inferred. 8. Learned counsel for the appellant submits that merely on the basis of the presence of the appellant on the cycle concerned, his possession on the contraband article cannot be presumed unless some other linking circumstances also proved by the prosecution. On this proposition, learned counsel for the appellant relied on the decision of the Hon'ble Apex Court reported in Avtar Singh and Others vs. State of Punjab, 2002 (2) EFR 605 wherein Hon'ble Apex Court on the similar situation held as under—
"Possession is the core ingredient to be established before the accused in the instant case are subjected to the punishment under Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of Clause (iv) of Section 2, it is for them to account for such possession satisfactorily; if not, the presumption under Section 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 vs. State of Punjab, 1973 (2) SCC 372 arising under the Opium Act, the learned Trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk conies 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 connotation. 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 at the back of the truck made themselves scarce after seeing the police and the prosecution 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 are labourers engaged merely for loading and unloading puiposes and there is nothing to show that the goods were at least in their temporary custody, conviction under Section 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
Section 114 of the Evidence Act, could perhaps be made out then to prove the possession of the accused."
9. In view of the aforesaid law laid down by Hon'ble Apex Court merely on the basis of the presence of the present appellant/accused on the carrier of the cycle concerned, his possession on the contraband article cannot be presumed to be conscious possession and this also cannot be inferred that contraband article was seized from the joint possession of both the accused persons. 10. Other witnesses examined by the prosecution are Mahendra Singh Sengar (P. W. 1) proved the information received at the S.D.O.P. Office at Garoth as provided under
Sections 42 and 57 of the N.D.P.S. Act; Ramlal (P. W. 2) proved the fact that concerning seizing officer has deposited the seized article as well as the sample packet in the store room of the concerned Police Station for safe custody, thereafter on 9.11.1998, he handed over one sample packet to the Constable Chandrapal Singh for its deposit in the FSL, Indore for its examination; Mohanlal Jangale Patwari (P. W.3) proved fact that he prepared spot map Ex.P-5 on the basis of the information given by the seizing officer Bhurelal Sharma (P. W. 11); Constable Chandrapal (P.W. 4) proved the fact that he handed over the information to S.D.O.P. Office at Garoth as provided under Section 42 as well as under
Section 57 of the N.D.P.S. Act and Radheshyam Head Constable (P.W. 5) proved the fact and supported the statement of the Seizing Officer Bhurelal Sharma (P.W. 11) that this witness accompanied during the seizure and search of the contraband article. He also specifically stated that whatever contraband article was seized in a bag which was found on the concerned cycle, which belonged to accused Kaluram and present appellant was sitting on the carrier of the concerned cycle, therefore, only presence of the appellant is proved on the spot itself by this statement. 11. As usual, independent panch witnesses Kishanlal Kalra (P.W. 6), Yogesh Kumar (P.W. 7), Ashraf (P.W. 8), Mahesh Kumar (P.W. 9) and Gurudutta (P.W. 10) not proved the aforesaid seizure from the possession of any of the accused. These witnesses were turned hostile. 12. Rajendra Kumar Chaturvedi (P.W. 12) is the investigating officer of the case who proved the report which was sent to S.D.O.P. Office as provided under
Section 57 of the N.D.P.S. Act. Similarly, he also proved the statement of the panch witnesses, which he recorded during the investigation under
Section 161 of the Criminal Procedure Code. 13. Thus, on overall re-appreciation of the entire prosecution evidence on record, in my considered opinion, the prosecution has failed to prove beyond reasonable doubt that seized contraband article was seized from the joint possession of the co-accused Kaluram as well as the present appellant/accused Ratanlal. Present appellant Ratanlal's presence only has been proved and on the basis of that, seizure of the contraband article is not found to be proved from the conscious possession of the present appellant and thus, learned Trial Court has committed error in holding the present appellant guilty for the offence punishable under
Section 8/21 (c) of the N.D.P.S. Act. 14. Resultantly, this appeal preferred by the appellant is allowed. The impugned judgment of conviction and sentence passed against the present appellant/accused Ratanlal is set aside and appellant/accused Ratanlal is acquitted from the charge under
Section 8/21 (c) of the N.D.P.S. Act. The appellant is in jail. He be set at liberty forthwith, if not required to be detained in any other case. The fine amount, if deposited by appellant, be refunded to him accordingly. _____________