LAWS(RAJ)-2012-7-286

PAWAN KUMAR Vs. STATE OF RAJASTHAN

Decided On July 31, 2012
PAWAN KUMAR Appellant
V/S
STATE OF RAJASTHAN Respondents

JUDGEMENT

(1.) 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.

(2.) 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 under Section 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.

(3.) 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: