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TMI Blog2002 (9) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle was checked at canal bridge near the village Dhange at about 1.30 A.M. by PW 2 ASI who was on the patrolling duty along with PW 4 (Head Constable) and two other constables. The vehicle was carrying 16 bags of poppy husk. Balbir Chand appellant No.3 herein was driving the vehicle. One person who was sitting in the front seat by the side of the driver and another person sitting on the back side of the truck ran away leaving the vehicle. These two persons are said to be Swarna Ram Accused No.3 and Swatantra Kumar (since deceased). The other two sitting at the back i.e., appellants 1 and 2 and the driver of the vehicle - Appellant No.3 were apprehended on the spot. 16 gunny bags of poppy husk were recovered. 250 gms was taken out as sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and no contention has been advanced before us in this regard. The contention that independent witnesses were not examined was also negatived holding that at that hour and place, it was difficult to expect any independent witness to be present there. The more important contention raised before the High Court was that from the mere fact that the appellants were sitting in the truck, it cannot be held that they were in possession of poppy husk. The High Court observed that the appellants did not come forward with the case that they were merely passengers and that they were unaware of what was contained in the bags. The reason for travelling at that odd hour with the offending goods was not stated by any of the accused. Therefore, the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession and transportation. However, the charge is confined to possession in the instant case. 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 (xiv) of S. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without addressing itself to the question of possession. The approach of both the courts is erroneous in law. Both the courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But, the other relevant aspects pointed out above were neither adverted to nor taken into account by the trial court and the High Court. Non-application of mind to the material factors has thus vitiated the judgment under appeal. Coming to the case of the third appellant who was driving the vehicle, there is one more infirmity in the prosecution case. He would have been charged alternatively for transporting the offensive goods without permit or authorizatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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