TMI Blog2011 (1) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... a fine of ₹ 1,00,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one year. The prosecution story when put in brief is that on 27.6.2004 ASI Gurdeep Singh was leading the police party in connection with special naka bandi and was present at bus stand Basantpura, when Kaur Singh PW met them. In the meantime at about 5.00 p.m. from the side of Rajpura Indica Car bearing registration No. DL-7CC-0654 was seen coming which was signaled to stop but driver tried to flee it away and then investigating officer placed the Barricade and car was made to stop. On enquiry driver told his name Sumit Tomar and his companion told his name Vikas Kumar. On suspicion car was checked and two plastic bags wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence, statement of the accused under Section 313 Cr.P.C., was recorded. The accused denied the incriminating evidence and claimed to be innocent and had been falsely implicated in the case. The accused examined Mahipal Singh (DW-1) and also tendered certain documents into evidence. Vikas Kumar co-accused of the appellant has died during the trial. 5. The learned Judge, Special Court, after hearing the learned counsel for the parties, convicted and sentenced the accused/appellant vide judgment dated 20.08.2009, as aforesaid. 6. Feeling dissatisfied with the aforesaid judgment and order, the appellant has preferred the present appeal. 7. I have heard learned counsel for the appellant and learned Assistant Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the prosecution. 11. Learned counsel for the appellant has further submitted that there are shops near the place of recovery. The car does not belong to the appellant. The testimony of the owner Devinder Kumar (PW-2) does not inspire confidence. So, the prosecution story is doubtful. 12. I have carefully considered the said submission but do not find any force in that submission. 13. The owner of the car Devinder Kumar has categorically stated that he has given the car to the appellant. The testimony of Devinder Kumar lends corroboration to the story of the prosecution. Mere fact that there were shops near the place of recovery does not make it suspicious that independent witness Kaur Singh was joined. So, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the file to discard their sworn testimony. 20. Learned counsel for the appellant has further submitted that conscious possession of the accused is not proved. 21. I have carefully considered the said submission but do not find any force in that submission. 22. Constitutional Bench of Hon'ble the Supreme Court in authority Madan Lal and another vs. State of H.P. reported in (2003) 7 SCC 465, held that in view of Sections 35 and 54 of the Act, where the accused is found to be in possession of contraband, the onus shift upon him to disprove that he is not in conscious possession. 23. Learned counsel for the appellant has further submitted that appellant was a student and has been falsely implicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been cross-examined specifically on this point. 30. Lastly, learned counsel for the appellant has submitted that according to HC Lakhwinder Singh (PW-1), four samples were drawn whereas according to case of the investigating officer and recovery witnesses, only two samples were drawn from the two bags and by mixing them on a tarpaulin. 31. I have carefully considered the said submission but do not find any force in that submission. 32. No doubt, in the cross-examination HC Lakhwinder Singh has stated about drawing of four samples but he has simply proved his affidavit Ex. PA, in which it is specifically mentioned that two samples and two bags of contraband were deposited with him as MHC. So, the said fact cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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