S.S. Sandhawalia, J. - (1.) THIS criminal appeal raises yet again the rather vexed question of the concept and nature of "possession" in prosecutions under Section 9 of the Indian Opium Act.
(2.) THE two Respondents along with one Sham Singh (who has died during the pendency of this appeal) were brought to trial on charges under Section 9 of the Opium Act before the Judicial Magistrate, 1st Class, at Bhatinda, who according the benefit of doubt, acquitted them by his order, dated the 25th of April, 1966. The State of Punjab now challenges this acquittal by way of appeal. On the 17th of October, 1964, at 4 p.m. Sub -Inspector Gurcharan Singh, who at the relevant time was the Station House Officer Kotwali Bhatinda received secret information whilst he was present in the district Court compound. This information was to the effect that Sham Singh and the two Respondents were habitual dealers and smugglers in opium and were presently carrying opium From Ferozepur towards Bhatinda in a car (No. PNB 24221 Sub -Inspector Gurcharan Singh, forthwith sent the information, Exhibit P.G. to the -police station on the basis of which formal first information report, Exhibit P.G./1 was recorded. Meanwhile he himself along with the police party moved towards the Canal bridge on the Ferozepur -Bhatinda road situated at about a mile or more from the town. On his way at the Bus -Stand he incidentally came across Pritam Singh P.W. 1 and Hardam Singh P.W. 2, who were joined as public witnesses with the police party. Having reached the canal bridge the police party split up into four separate parties and took up positions on both sides of the bridge at about 4.30 p.m. At about 5 p.m. car No. PNB 2422 approached the bridge from the Ferozepur City and having seen it coming, the Sub -Inspector Gurcharan Singh and others moved a deserted cart lying near the spot to the middle of the road for the purpose of obstructing the passage of the said vehicle. They thus succeeded in stopping the car arid found that Sham Singh was driving the same whilst Balwant Singh and Gurdev Singh, Respondents were sitting in the rear seat. All three there -_ after came out of the car and Sham Singh produced a "bunch of keys Exhibit P. 2, which was taken into possession and the luggage boot of the car was opened with the key Ex. P. 3 wherefrom a gunny bag was recovered. This contained one canvas bag "Exhibit f. 6 which further contained 9 bags containing different amounts of opium which on weighment was found to be 15 kilograms and 750 grams. Ten grams of opium were taken out from each bag as samples and separately sealed whilst the rest of the opium was also duly sealed and taken into possession. From a search of the car and the personal search of all the three accuse -person certain other articles were also recovered and taken into possession, - -vide relevant recovery memos. On subsequent chemical analysis the samples were opined to be opium and on the completion of the investigation the two Respondents along with Sham Singh were sent up for trial with the result noticed above.
(3.) THE prosecution examined P.W. 1, Pritam Singh and P.W. 2 Hardam Singh, the public witnesses regarding the recovery. P.W. 4 Sub -Inspector, Gurcharan Singh is the Investigating Officer, who had organised the raid whilst P.W. 3 Dewan Singh was produced to show the connection between Balwant Singh, Respondent and Sham Singh and also for the purpose of identifying the alleged hand -writing of Balwant Singh, Respondent on Exhibit P. 16.;