AVTAR SINGH AND ORS versus STATE OF PUNJAB

Citation: [2002] SUPP. 2 S.C.R. 482 · Decided: 18-09-2002 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
AVTAR SINGH AND ORS 
v. 
STATE OF PUNJAB 
• 
SEPTEMBER 18, 2002 
. [S. RAJENDRA BABU AND P. VENKATARAMA REDD!, JJ.] 
Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 15, 
35 and 54-Accused found travelling at odd hour in a vehicle containing 
C poppy husk-Conviction by courts below on presumption as to possession--
Correctness of-Held, in the absence of proof presumption as to possession 
cannot be drawn, hence conviction and sentence set aside-Evidence Act, 
1872, Section 114. 
D 
Words and Phrases : 
'Possession '-Meaning of 
According to the prosecution appellant No.3 was driving a vehicle 
containing poppy husk bags at odd hour. Appellant Nos. I and 2 were sitting 
at the back on the bags. Appellants were apprehended and bags of poppy husk 
E were recovered. Trial Court convicted the appellants under Section 15 of the 
Narcotic Drugs and fsychotropic Substances Act, 1985 invoking presumption 
under section 54. High Court resorted to presumption under section 35 and 
confirmed the order of trial court Hence the present appeal. 
Appellants contended that the possession, much less conscious 
F possession of the bags of poppy husk has not been established and also the 
accused were not questioned about it. 
Allowing the appeal, the Court 
G 
HELD: 1.1. It is difficult to reach the conclusion beyond reasonable doubt 
that the three appellants one of whom was driving the vehicle and the other 
two sitting on the back were having custody or control of the goods. It 
transpires from evidence that the appellants were not the only occupants of 
the vehicle. One of the persons who was sitting in the cabin and another person 
sitting at the back of the truck made themselves scarce after seeing the police 
H 
482 
A VT AR SINGH v. STA TE OF PUNJAB 
483 
and the prosecution could not establish their identity. It is quite probable that A 
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. 
True, their silence and failure to explain the circumstances in which they 
were travelling in the vehicle at the odd hours, is one strong circumstance B 
that can be put against them. A case of drawing presumption under Section 
114 of the Evidence Act could perhaps be made out then to prove the possession 
of the accused, but, the fact remains that in the course of examination under 
Section 313 Cr.P.C., not even a question was asked that they were the persons 
in possession of poppy husk placed in the vehicle. The object of examination 
under Section 313, it is well known, is to afford an opportunity to the accused C 
to explain the circumstances appearing in the evidence against him. It is 
unfortunate that no question was asked about the possession of goods. Having 
regard to the charge of which appellants were accused, the failure to elicit 
their answer on such a crucial aspect as possession, is quite significant. In 
this state of things, it is not proper to raise a presumption under Section 114 
of Evidence Act. (486-G, H; 487-A-E( 
D 
1.2. High Court resorted to presumption under Section 35 of the 
Narcotic Drugs and Psychotropic Substances Act, 1985 which relates to 
culpable state 'of mind, without considering the aspect of possession. Trial 
court invoked the presumption under S.54 of the Act without addressing itself E 
to the question of possession. The approach of both the courts is erroneous 
in law. They rested their conclusion on the fact that the accused failed to give 
satisfactory explanation for travelling in the vehicle containing poppy husk 
at odd hour. But, the other relevant aspects as pointed out were neither adverted 
to nor taken into account by trial court and High Court. Thus non-application 
of mind to the material factors has vitiated the judgment under appeal. Inc/er F 
Sein v. State of Punjab, (1973) 2 sec 372, referred to. (487-E-G) 
1.3. Third appellant would have been charged alternatively for 
transporting the offensive goods without permit or authorization as required 
by law; but, such a charge was not laid and there was not even reference to 
Section 8 of the Act. As a result third appellant goes scot-free. Thus the Q 
conviction and sentence of all the appellants is set aside. (487-H; 488-A( 
2. The word 'possession' no doubt has different shades of meaning and 
it is quite elastic in its connotation. Poss

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