Jagdish Rai Vs State
J U D G M E N T
AFTAB ALAM, J.
appellant Jagdish Rai, along with another accused Ajaib Singh is convicted under
section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short
"the Act") and sentenced to 10 years' rigorous imprisonment and a fine
of Rs.1 lakh with the direction that in 2default of payment of fine he would
undergo rigorous imprisonment for 1 year.
to the prosecution case, the appellant was coming on a Rajdoot motorcycle when
he was intercepted by the police party. On seeing the police party, the
appellant tried to turn around and flee away. He was, however, not successful
in making good the escape and the motorcycle was stopped by the police party.
Riding with the appellant on the pillion of the motorcycle was the other
accused Ajaib Singh who had a bag slung from his shoulder carrying 4 kgs. of
the investigation was completed, both the accused were put on trial and were
convicted and sentenced by the trial court, as noted above. In appeal, the High
Court affirmed their conviction and the sentence awarded to them by the trial
noted above, the High Court upheld the judgment of the trial court and
dismissed the appellant's appeal (Criminal Appeal no.478 SB of 1998) by
judgment and order dated December 13, 2007, [that was passed on the record of
Criminal Appeal no.582 SB of 1998 (in Ajaib Singh v. State of Punjab)].
us, the only point urged on behalf of the appellant was that on the basis of
the prosecution case and the evidences led on its behalf, it was not possible to
attribute conscious possession of the contraband to the appellant. Mr. Chahar, senior
advocate, appearing for the appellant, submitted that the bag containing opium
was carried by the other accused, the pillion rider and the appellant was
driving the motorcycle. It, therefore, cannot be assumed that the appellant was
aware of the contents of the bag being carried by the other accused.
question whether the appellant can be said to be in conscious possession of the
contraband has been considered by the High Court in detail and relying upon a
number of decisions, both of the courts of this country and of some foreign courts,
the High Court held and found that the conscious possession of the contraband by
the appellant was fully established. In this regard, the High Court made the following
observations: "... Two persons were concededly seen coming on a motorcycle.
Having seen the police, efforts were made to retreat. The appellants, however, were
nabbed. Why would appellant Jagdish Rai, who was seen driving the motorcycle, would
make an effort to retreat in case he was not aware of what was being carried by
his pillion rider appellant Ajaib Singh? Appellant Ajaib Singh was found carrying
bag on his shoulder. It is not the case of the appellants that they both were strangers
or Ajaib Singh had taken lift from him. They both were traveling on a private
motorcycle and it was not a public vehicle.
It is difficult to assume
that Jagdish Rai was not in conscious possession of the said contraband.... .....
Once appellant Jagdish Rai was seen riding a motorcycle with a person on his pillion
from whom this contraband was recovered, the prosecution, in my view, succeeded
in showing that physical possession was that of appellant, Ajaib Singh and appellant
Jagdish Rai knew about it which is noticed from his action to retreat on seeing
the police party and, thus, could be construed in possession of the contraband.
He apparently was conscious of the fact that his pillion is carrying opium. It
is to cover such situations, that provisions in the form of Sections 35 and 54
of the Act are made where presumptions are available to be drawn from the
possession of illicit articles as established. It would, as such, be difficult
to say that the appellant Jagdish Rai was not found to be in conscious
possession of the contraband. Once he was shown to be driving a motorcycle with
appellant carrying bag, it was for him to show that he was not aware of what
was being carried in the bag and the special provisions of Sections 35 and 54
of the Act would require him to do so."
hearing counsel for the parties and on going through the materials on record we
are fully in agreement with the view taken by the High Court.
support of the submission that the appellant cannot be presumed to be aware of
the contents of the bag being carried by the other accused and no conscious
possession of opium can be attributed to him, Mr. Chahar relied upon a decision
of this court in Avtar Singh & Ors. v. State of Punjab, (2002) 7 SCC 419. In
Avtar Singh, the three appellants before this Court were the driver of the
truck and two persons sitting on the bags of poppy husk being carried on the vehicle.
It is significant to note that those three appellants were not the only
occupants of the truck but there were two other persons, one sitting in the
cabin and the other sitting at the back of the truck who were able to run away
when the vehicle was stopped by the police and the prosecution was not able to
establish their identity. This Court observed that it was quite probable that one
of them could be the custodian of the goods whether or not he was the
proprietor. In regard to the two appellants who were sitting on the bags
containing poppy husk, the Court observed as follows:
"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 purposes 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 traveling 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,
but the fact remains that in the course of examination under Section 313 CrPC, 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."
the driver also the Court gave the benefit of doubt due to his flawed examination
under section 313 of the Code of Criminal Procedure. The decision in Avtar Singh
has no application to the facts of the present case.
other point was urged before us.
light of the discussion made above, we find no merit in the appeal. It is,