- (1.) REVISION petitioner Gurmeet Singh has filed this petition under Section 401 Cr.P.C. against the impugned order dated 30.08.2013 passed by learned Judge, Special Court, Fazilka, vide which the discharge application of the petitioner was dismissed. The brief facts of the prosecution case are that when the police party was on patrolling duty, one motorcycle was signaled to be stopped and thereafter one of the accused succeeded in running away and the other person, who was apprehended on the spot, disclosed his name as Gurmeet Singh @ Babbu -revision petitioner. Gurmeet Singh @ Babbu was pillion rider on the motorcycle and on search of the tool box of the motorcycle, 1 kg. opium was recovered.
(2.) LEARNED counsel for the revision petitioner has stated that the application filed by the police for discharge of the petitioner has been dismissed by the learned Judge, Special Court, Fazilka. The only point argued by learned counsel for the revision petitioner is that the Court while dismissing the application, relied upon the zimini by the police vide which the petitioner is doing business along with Varinder Singh. The perusal of the FIR and the record shows that the revision petitioner was going as pillion rider on motorcycle. The driver Varinder Singh @ Kaka had succeeded in running away, whereas the petitioner was apprehended and 1 Kg. opium was recovered from the tool box of the motorcycle on which the petitioner was travelling as pillion rider. Therefore, the prima facie possession of the contraband is proved. The prosecution is only to prove the possession. It is to be shown by the accused that he was not in the conscious possession as held by the Hon'ble Supreme Court in Megh Singh v. State of Punjab, 2003 4 RCR(Cri) 319, wherein it is held that word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. Expression 'possession' is a polymorphous term which assumes different colours in different contexts. It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes. In that case, accused was found sitting on gunny bags containing contraband and it was held that accused was in conscious possession.
(3.) AT this stage, it cannot be held that the present revision petitioner was not in conscious possession. This fact regarding conscious possession is to be determined by the trial Court when the evidence will be produced before it. Therefore, no ground is made out for discharge of the present revision petitioner and no illegality has been committed by the Court below while dismissing the application. Learned counsel for the petitioner has cited judgment passed by the Hon'ble Bombay High Court in Dinesh Bulakhi Harijan and another v. State, 2009 5 RCR(Cri) 589, to show the fact that confession before the police is inadmissible evidence. I agree with the law but as already discussed, it cannot be held that there is no other evidence against the revision petitioner except the confession made before the police. Rather, he was apprehended on the spot while traveling on the motorcycle.;