Pawan Kumar vs State of Rajasthan

S.S. Kothari, J.

From the above statement, it is clear that the sample was not put in a polythene bag, but was directly put in the cloth bag. But from Ex. P.14, it is evident that the sample received by the Forensic Science Laboratory was contained in the polythene bag, which was covered in a while cloth cover. Thus, there is a basic discrepancy in the evidence of Bhanwar Lal (P.W. 8) and F.S.L. report (Ex. P.14) and in my opinion this discrepancy goes to the root of the matter. According to the S.H.O., who effected the recovery from the possession of the accused-appellant, the sample recovered from the possession of the accused-appellant was put in the cloth bag and not in the polythene bag, whereas Ex. P.14 shows that the sample received by the Laboratory for chemical examination was contained in a polythene bag. Thus, it is evident that the sample recovered from the possession of the accused-appellant was not sent to the Forensic Science Laboratory for chemical examination and the F.S.L. report (Ex. P.14) is not a report in respect of the sample which was in fact recovered from the possession of the accused-appellant. Thus, it is evident that the prosecution has not been able to prove beyond reasonable doubt that the substance recovered from the possession of the accused-appellant was in fact crushed poppy and consequently, the benefit of doubt goes to the accused-appellant.

Both the appellants have been found travelling in the car from which charas was recovered and, therefore, they were in possession thereof. They were knowing each other. They were not travelling in a public transport vehicle. Distinction has to be made between the accused travelling by public transport vehicle and private vehicle. It needs no emphasis that to bring the offence within the mischief of Section 20 of the Act possession has to be conscious possession. Section 35 of the Act recognises that once possession is established the court can presume that the accused had a culpable mental state, meaning thereby conscious possession. Further, the person who claims that he was not in conscious possession has to establish it. Presumption of conscious possession is further available u/s 54 of the Act, which provides that the accused may be presumed to have committed the offence unless he accounts for satisfactory the possession of contraband.

The view which we have taken finds support from a judgment of this Court in Madan Lal vs. State of H.P. Wherein it has been held as follows:

Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.

In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the appellant-accused that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.

Now, referring to the decision of this Court in Avtar Singh 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 pubic transport vehicles in which several persons travel cannot be applied in the facts of the present case.

Similarly, in Sorabkhan Gandhkhan Pathan the contraband was recovered from an auto rickshaw and in the absence of specific case that the accused had knowledge of carrying the contraband, only on the ground that he was travelling in an auto rickshaw, possession cannot be inferred. For the reasons aforesaid this case is of no assistance to the appellants.

When the sample of opium changed several hands before reaching the public analyst and the person in custody of samples are not examined, the inevitable effect will be that the prosecution has failed to rule out the possibility of the sample being changed or tampered with during the period in question.