Nirmal Singh vs The State of Haryana

Gurnam Singh, J.—Nirmal Singh, driver and Kuldeep Singh, Conductor truck No. RHL 5427, were challaned u/s 9 of the Opium Act Judicial Magistrate 1st Class, Panipat convicted both of them u/s 9 of the Opium Act and sentenced each of them to suffer rigorous imprisonment for one and a half years and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for six months. They filed appeals against the order of their convictions and sentences, which were heard by the Additional Sessions Judge, Karnal and dismissed. This criminal revision has been filed by Nirmal Singh only.

The facts of the case, briefly stated, are that on 12th July, 1973 at about 4.10 P.M., Assistant Sub-Inspector Jagir Singh received secret information at Police Station Saddar Panipat, that truck No. RHL 5427 loaded with Poppy husk was standing on the G.T. Road near Gohana Road. Assistant Sub-Inspector Jagir Singh accompanied by one Head Constable, five constables and Des Raj and Dhan Singh, PWs, and Hari Chand started towards the spot Another Head-constable and one constable met them in the way and they were also joined. The truck was found standing on the road about 1� furlong from Gohana road towards Delhi loaded with 101 bags. Both the accused were sitting in the truck. Nirmal Singh petitioner was sitting at the steering of truck. The bags contained poppy husk and each bag contained 40 Kgs of poppy husk. Samples were taken from each bag. The samples were sent to the Chemical Examiner, who reported that the same were of poppy husk. Consequently both the accused were chalaned.

It is not disputed that the poppy husk was found in the truck in which both the accused were sitting Kuldeep Singh, the co-accused of the petitioner, admitted at the spot that the goods belonged to him and that the same were booked as Poultry feed, The case of the present petitioner was, that he was the driver of the truck and that he had no knowledge about the contents of the bags as the same were loaded in his absence by his co-accused Kuldeep Singh. He further stated that Kuldeep Singh was the owner of the goods and had declared the same as poultry feed. In view of the admission of the accused that the bags containing poppy-husk were recovered from the truck, it is proved that they had the physical custody of the same. It can be further said that they were directly concerned with the poppy-husk. u/s 10 of the Opium Act, the burden of proof to show that he had not committed any offence, will be upon the petitioner In other words it is for the petitioner to show that he was not knowingly in possession of the poppy husk. As observed by the Hon''ble Judges of the Supreme Court in Inder Sain Vs. State of Punjab, , in such circumstances, the accused has to prove by preponderance of probability that he was not in conscious possession of the poppy husk otherwise the presumption u/s 10 of the Opium Act would arise against him.

The word "possess" in Section 9 of the Opium Act connotes conscious possession. Possession with knowledge is an essential ingredient of Section 9 of the Opium Act. Physical possession, without knowledge, cannot amount to an offence u/s 9 of the Opium Act. By virtue of Section 10 of the Act, when the prosecution proves that the accused had dealt with the opium or has its physical custody, then he has to show that he had no knowledge of the contents of the article.

Now it is to be seen as to whether in the instant case, the petitioner has discharged the onus placed upon him u/s 10 of the Opium Act. The petitioner in his statement recorded u/s 342, Criminal Procedure Code, 1898, stated that be did know that the contents of the bags were poppy husk, that the goods were loaded in the truck saying that the same was poultry feed, that the same were loaded In his absence and that when he came to know that it was poppy husk and had been got loaded by his co accused Kuldeep Singh, he reprimanded him. The prosecution has produced no evidence in this case to show that in fact the goods were loaded in the presence of the petitioner and that it was within his knowledge that the contents of the bags loaded were poppy husk. The prosecution examined only four witnesses in this case. It is in the cross-examination of Des Raj, P.W. 1, that Kuldeep Singh had admitted that the goods belonged to him and that he got the same booked saying that it was a poultry-feed. He also stated that Kuldeep Singh had told that Nirmal Singh petitioner had no information about the same Assistant Sub-Inspector Jagir Singh, PW. 2 is the Investigating Officer and he deposed about the arrest of the accused along with poppy husk Dhan Singh, P.W. 3, also stated that Kuldeep Singh had said that the goods were loaded disclosing that the same were poultry feed and that the petitioner had said that he did not know about the same. He further stated that the petitioner fell out at Kuldeep Singh saying that as to why it was kept a secret from him. Kishori Lal, P.W. 4, is Octroi Clerk end there is nothing relevant in his statement. From the evidence on the file it is not established that the petitioner had direct relationship with the poppy husk or otherwise dealt with it. It is rather established that in the knowledge of the petitioner, the bags loaded in the truck contained poultry-feed. It can be further said that he must be having a bona fide belief that the bags contained the poultry-teed. Under these circumstances, the onus which was on the petitioner has been discharged. It may, however, be pointed out that the circumstances from which the Appellate Court has drawn the presumption of the knowledge of the petitioner are not based on any material, father they are imaginary. The result is that the conviction of the petitioner is illegal. This revision petition is, therefore, accepted and the conviction and sentence of the accused-petitioner are set aside and he is acquitted of the charge. The fine, if paid, shall be refunded to him. He is on bail and his bail bond is cancelled.