TaxTMI 
TaxTMI 
TaxTMI 
2010 (9) TMI 1005
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....nspector of Police, Ranjit Singh and other police personnel were on a routine picket duty near the passage leading to the various colonies from Ajitwal. While they were on duty a white Maruti Car, bearing No.PID 6096 was seen coming from the side of village Kokri Kalan through an unmetalled road and when signalled by Jagmohan Singh, it stopped. On enquiry the person driving the car disclosed his name as appellant Dharampal Singh whereas the other person sitting by his side on the front seat disclosed his name as appellant Major Singh. According to the prosecution, the Station House Officer apprised them that they intend to search their car and whether they wish to be searched in the presence of a Magistrate or a Gazetted Officer. Both of them expressed their desire to be searched by a Gazetted Police Officer and accordingly on his wireless message Narinderpal Singh, Superintendent of Police, Moga along with security personnel reached there. According to the prosecution an attempt was made to join independent persons to witness to the search but none were available. Hence, the car was searched by Jagmohan Singh in the presence of the Superintendent of Police and in the dicky of the ....
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....ment has set aside the order of acquittal and convicted the appellants as above. The High Court has found that since the recovery was effected from the dicky of the car and not from the person of the appellants the provisions of Section 50 of the Act were not applicable and as such the question of violation thereof did not arise at all. The High Court further held that they were in possession of 65 Kilograms of opium. The finding of the High Court in this regard reads as follows: "It is proved from the cogent, convincing, reliable and unimpeachable evidence of Jagmohan Singh, Inspector, Station House Officer, P.S. Mehna, PW-3, the Investigating Officer of this case, and Narinder Pal Singh, Superintendent of Police, PW-2, that Dharampal Singh, accused, was driving Car No.PID 6096 and Major Singh, accused, was sitting by his side, on the front seat, at the relevant time, when the recovery of 65 K.gms of opium, wrapped in a glazed paper, from a gunny bag, lying in the dicky of the same, was effected. The Car, in question, belonged to the brother of Dharampal Singh, accused, as per the registration certificate, referred to above. Since no enmity against the prosecution witnesses, was ....
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....ession 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 PW 4, the Head Constable, it is seen that Appellant 3 (Accused 4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused 1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (PW 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 the other two sitting on the bags, were having such custody or control? It is difficult to reach such concl....
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....as recovered. The vehicle driven by the appellant, Dharampal Singh and occupied by the appellant, Major Singh is not a public transport vehicle. It is trite that to bring the offence within the mischief of Section 18 of the Act possession has to be conscious possession. The initial burden of proof of possession lies on prosecution and once it is discharged legal burden would shift on accused. Standard of proof expected from the prosecution is to prove possession beyond all reasonable doubt but what is required to prove innocence by the accused would be preponderance of probability. Once the accused plea is found probable, discharge of initial burden by the prosecution will not nail him with offence. Offences under the Act being more serious in nature higher degree of proof is required to convict an accused. It needs no emphasis that the expression possession is not capable of precise and completely logical definition of universal application in context of all the statutes. Possession is a polymorphous word and cannot be uniformly applied, it assumes different colour in different context. In the context of Section 18 of the Act once possession is established the accused, who claims ....
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....ble to be drawn from possession of illicit articles. 27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused- appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act." 10. Now, referring to the decision of this Court in the case of Avtar Singh (supra), the same is clearly distinguishable. In the said case, according to the prosecution itself, the vehicle loaded with bags of poppy husk was a truck and when it was stopped one person sitting in the cabin and another person sitting in the back of the truck fled away. The accused in the said case were not the only occupants and in the said background this Court held that they cannot be presumed to be in the possession of the goods and it is quite probable that one of those who fled away could have been the custodian thereof. However, in the present case the vehicle in question is not a transport vehicle and, therefore, the test applied in the case of public transport vehicles in which several persons travel cannot be applied in the facts of the present case. Similarly, in the case of Sora....
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....ssion vide memo Ex.PB impression of the seal was also prepared which are Ex.P7 and Ex.P8 and both the seals after use were handed over to ASI Ranjit Singh. What have you got to say about it? A. It is incorrect." As part of fair trial, Section 313 of the Code of Criminal Procedure requires giving opportunity to the accused to give his explanation regarding the circumstance appearing against him in the evidence adduced by the prosecution. The purpose behind it is to enable the accused to explain those circumstances. It is not necessary to put entire prosecution evidence and elicit answer but only those circumstances which are adverse to the accused and his explanation would help the court in evaluating the evidence properly. The circumstances are to be put and not the conclusion. It is not an idle formality and questioning must be fair and couched in a form intelligible to the accused. But it does not follow that omission will necessarily vitiate the trial. The trial would be vitiated on this score only when on fact it is found that it had occasioned a failure of justice. 13. Bearing in mind the aforesaid principle when we consider the facts of the present case we find that the pr....