- (1.) THE petitioners Satya Narain, driver and Gangadhar, cleaner, of the Taxi Car No. RJZ 5459, have been convicted of the offence under Sec. 4/9 of the Opium Act and have been sentenced to ten months' rigorous imprisonment and a fine of Rs. 1,000/-, and, in default of payment of fine to undergo two months' rigorous imprisonment, by the Sessions Judge, Pratapgarh (Camp Chittorgarh), by his judgment dated 23-9-1978, dismissing the appeal of the petitioners.
(2.) THE prosecution case, in brief, is that on 17-8-1974 Shri Roshan Lal Sharma, Preventive Inspector, Narcotics Department (P. W. 5), with his party had, land ambush in the town of Nimbahera, near J. K. Cement Factory. THEy observed about 8. 30, a. m. , that the Car No. RJZ 5459 was coming from Mand-saur and going towards Chittorgarh. A signal was given for stopping the car, but the driver of the car Satya Narain instead of stopping the car, drove away the car with a fast speed. THEreupon, the excise party chased that car and overtook it. At that time, when the car was stopped, the two occupants of the car ran away. THE driver of the car Shri Satya Narain and the cleaner of the car Shri Gangadhar were apprehended and a search of the car was taken. THE dicky of the car was opened by the driver Satya Narain with his key. THE dicky contained four bags having seven ragzine bags in them. THE ragzine bags were weighed and on weighing, 60 kilograms and 200 grams opium was found in them. THE recovery memo Ex. P/i was prepared. Three samples of 30 grams each, were taken, which were packed and sealed. THE site plan and the site notes were prepared. THE accused persons along with the papers, were produced at the Police Station, Bhadsoda, whereupon case under Sec. 4/9, Opium Act, was registered. On analysis of the samples it was found that the substance recovered was opium. THE petitioners, thereafter, were prosecuted and were tried by the Munsif and Judicial Magistrate, First Class, Nimbahera and at the trial the prosecution examined as many as ten witnesses. THE statement of the accused persons were recorded, in which they stated that the Taxi was hired by the two passengers and the passengers were being carried in the car. THE bags found in the dicky, belonged to the passengers. THEy stated that they did not know the contents of the bags. THE passengers ran away soon after the car was stopped. No evidence was led in defence. THE learned Magistrate convicted and sentenced the petitioners, which was upheld by the learned Sessions-Judge. Hence, this revision petition. I have heard Shri M. M. Singhvi, learned counsel for the petitioner and Shri Niyazuddin Khan, learned Public Prosecutor, for the State. Mr. M. M. Singhvi, learned counsel for the petitioners, submitted that the petitioners had no knowledge of the contents of the bags and so it cannot be said that they were in possession of them. The Taxi was hired by the passengers and the Taxi was carrying the passengers along with the goods loaded by them and put in the dicky. He invited my attention to the statement of P. W. 7 Raghunath Prasad. Deputy Narcotics Commissioner, Neemuch, who has deposed in the cross-examination that he does not know that the accused Satya Narain expressed that the bags belonged to those, who had run away. He has further stated that on seeing the bags externally, it is not known that what they contained. P. W. 5 Shri Roshan Lal Sharma has also stated that what can be known from seeing the bags, as to what is there in them, unless the bags are opened. Although P. W. 5 Shri Roshan Lal and PW 8 Babu Lal have given a different version, other than the version given by PW 7 Shri Raghu Nath Prasad, as to whether Satya Narain expressed it or not that the bags belonged to those who had run away. Both these witnesses, PW 5 Roshan Lal and P. W. 8 Babu Lal, Sub-Jnspector Narcotics, have stated that Satya Narain did not express that the goods belonged to the passengers, who had run away. My attention has also been invited by Shri Singhvi to the statement of the owner of the Car P. W. 3 Shri Mohanlal, who has deposed that Satya Narain hired the Taxi from Ajmer for Neemuch for a sum of Rs. 250/- and he went to Neemuch. But in cross-examination he has given out the version, which had" been given by the accused persons that Satya Narain disclosed that at Neemuch two passengers hired the Taxi for Udaipur for a sum of Rs. 200/-, That the goods in the dicky belonged to those passengers and that he stopped the car when it had gone beyond Chittor. Mr. Singhvi contended that the statement of PW 7 Raghunath Prasad is not in harmony with the statement of PW 5 Roshan Lai and PW 8 Babu Lal. PW 7 Raghunath Prasad has pleaded ignorance of what Satya Narain had expressed and the other two witnesses have denied that Satya Nanin expressed that the goods belonged to those, who had run away. It may be mentioned that whatever Mohan Lal (PW 3) has deposed in his cross-examination, cannot be discarded simply on the basis that he is the owner of the car and that Satya Narain is in his employment, PW 5 Mohan Lal, PW 7 Raghunath Prasad and PW 8 Babu Lal are all officials of preventive force. There were no Motbirs of the recovery. Admittedly, knowledge about the contents of the bags cannot be imputed to the petitioners, as on seeing the bags externally, it could not be known as to what are their contents, as has been stated by PW 5 Roshan Lal and PW 7 Raghunath Prasad. Thus, in the circumstances of the case it would be reasonable to hold that the Taxi was hired by the two passengers and that the bags found in the dicky, belonged to them and the driver and the cleaner had no knowledge of the contents of the bags. The learned Public Prosecutor submitted that the conduct of the driver shows his guilty conscious inasmuch as he, instead of stopping the car on a signal having been given to him, sped away the car. This conduct of the driver indicates that the driver knew it very well that he is transporting the contraband commodity. This conduct on the part of the driver is clearly suggestive of conscious possession of the contraband goods In this connection suffice it to say that the car could be sped away not only for the aforesaid reason, but even for other reason. Besides that, it is significant that so far as the bags in the dicky are concerned, they by no stretch of imagination, can be said to be in conscious possession of the petitioners or in any way under their control. In this connection reference can usefully be made to a decision of this Court in Gurdayal Singh vs. State of Rajasthan (1 ). In that case similar conduct on the part of the driver of the truck was taken into consideration The truck was found carrying opium. It was observed that the more circumstance that the petitioners did not stop the truck inspite of being asked to do so by the Station House Officer did not necessarily lead to the only inference that he knew it well that he was transporting contraband opium. It was further observed that even if it is taken to be true that the petitioner did not stop the truck and tried to move onwards at a fast speed this facts alone does not inevitably lead to an inference that he did so because he knew that he was transporting contraband opium in vehicle. As regards possession, it was further observed as under: - "in the circumstances of the case, no presumption of a guilt could legitimately be drawn that the driver of the truck, i. e. the petitioner was in possession of everything contained in the bags which he was transporting in his vehicle, nor could it be safely inferred that he was in conscious possession or control of any thing found in the bags. " The aforesaid decision is in all fours on the present case. In that case, in the light of the above observations Gurdayal Singh's revision petition was allowed and his conviction and sentence were set aside. The above observations, in my opinion, are clearly applicable to the facts and circumstances of the present case and in that view of the matter, the conviction and the sentence of the petitioner cannot be sustained.
(3.) IN the result, the revision petition is allowed, the conviction and the sentence of the petitioners are set aside and they are acquitted of the offence under Section 4/9 of the Opium Act. They are already on bail, so they need not surrender to their bail bonds. Their bail bonds are discharged. .;