NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1450 OF 2008

Jagdish Rai      …..Appellant

Versus

State of Punjab         ......Respondent

J U D G M E N T

AFTAB ALAM, J.

1. The appellant Jagdish Rai, along with another accused Ajaib Singh is  

convicted  under  section  18  of  the  Narcotics  Drugs  and  Psychotropic  

Substances  Act,  1985  (for  short  “the  Act”)  and  sentenced  to  10  years’  

rigorous imprisonment  and a  fine of  Rs.1  lakh with  the  direction that  in

default of payment of fine he would undergo rigorous imprisonment for 1  

year.

2. According to  the  prosecution  case,  the  appellant  was  coming on a  

Rajdoot motorcycle when he was intercepted by the police party. On seeing  

the police party, the appellant tried to turn around and flee away. He was,  

however, not successful in making good the escape and the motorcycle was  

stopped by the police party. Riding with the appellant on the pillion of the  

motorcycle was the other accused Ajaib Singh who had a bag slung from his  

shoulder carrying 4 kgs. of opium.  

3. After the investigation was completed, both the accused were put on  

trial and were convicted and sentenced by the trial court, as noted above. In  

appeal, the High Court affirmed their conviction and the sentence awarded  

to them by the trial court.  

4. As noted above, the High Court upheld the judgment of the trial court  

and dismissed the appellant’s appeal (Criminal Appeal no.478 SB of 1998)  

by judgment and order dated December 13, 2007, [that was passed on the  

record of Criminal Appeal no.582 SB of 1998 (in  Ajaib Singh v.  State of   

Punjab)].

5. Before us, the only point urged on behalf of the appellant was that on  

the basis of the prosecution case and the evidences led on its behalf, it was  

2

not  possible  to  attribute  conscious  possession  of  the  contraband  to  the  

appellant.  Mr.  Chahar,  senior  advocate,  appearing  for  the  appellant,  

submitted that the bag containing opium was carried by the other accused,  

the pillion rider and the appellant was driving the motorcycle. It, therefore,  

cannot be assumed that the appellant was aware of the contents of the bag  

being carried by the other accused.

6. The question whether  the appellant  can be said to be in conscious  

possession of the contraband has been considered by the High Court in detail  

and relying upon a number of decisions, both of the courts of this country  

and  of  some  foreign  courts,  the  High  Court  held  and  found  that  the  

conscious  possession  of  the  contraband  by  the  appellant  was  fully  

established. In this regard, the High Court made the following observations:

“…  Two  persons  were  concededly  seen  coming  on  a  motorcycle.  Having  seen  the  police,  efforts  were  made  to  retreat.  The  appellants,  however,  were  nabbed.  Why  would  appellant  Jagdish Rai,  who was seen driving the motorcycle,  would make an effort  to retreat  in case he was not aware of  what  was  being  carried  by  his  pillion  rider  appellant  Ajaib  Singh? Appellant Ajaib Singh was found carrying bag on his  shoulder. It is not the case of the appellants that they both were  strangers  or  Ajaib Singh had taken lift  from him. They both  were traveling on a private motorcycle and it was not a public  vehicle.  It  is  difficult  to assume that  Jagdish Rai was not  in  conscious possession of the said contraband.…

….. Once appellant Jagdish Rai was seen riding a motorcycle  with a person on his pillion from whom this contraband was  

3

recovered, the prosecution, in my view, succeeded in showing  that physical possession was that of appellant, Ajaib Singh and  appellant Jagdish Rai knew about it which is noticed from his  action to retreat on seeing the police party and, thus, could be  construed in possession of the contraband. He apparently was  conscious of the fact that his pillion is carrying opium. It is to  cover such situations, that provisions in the form of Sections 35  and 54 of the Act are made where presumptions are available to  be drawn from the possession of illicit articles as established. It  would, as such, be difficult to say that the appellant Jagdish Rai  was not found to be in conscious possession of the contraband.  Once he was shown to be driving a motorcycle with appellant  carrying bag, it was for him to show that he was not aware of  what was being carried in the bag and the special provisions of  Sections 35 and 54 of the Act would require him to do so.”

7. On hearing counsel for the parties and on going through the materials  

on record we are fully in agreement with the view taken by the High Court.

8. In support of the submission that the appellant cannot be presumed to  

be aware of the contents of the bag being carried by the other accused and no  

conscious possession of opium can be attributed to him, Mr. Chahar relied  

upon a decision  of  this  court  in  Avtar Singh & Ors. v.  State  of  Punjab,  

(2002) 7 SCC 419. In  Avtar Singh,  the three appellants before this Court  

were the driver of the truck and two persons sitting on the bags of poppy  

husk being carried on the vehicle. It is significant to note that those three  

appellants were not the only occupants of the truck but there were two other  

persons, one sitting in the cabin and the other sitting at the back of the truck  

4

who were able to run away when the vehicle was stopped by the police and  

the prosecution was not able to establish their identity. This Court observed  

that it was quite probable that one of them could be the custodian of the  

goods whether or not he was the proprietor. In regard to the two appellants  

who were sitting on the bags containing poppy husk, the Court observed as  

follows:

“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.  For  instance,  if  they  are  labourers  engaged merely for loading and unloading purposes and there is  nothing to show that the goods were at least in their temporary  custody, conviction under Section 15 may not be warranted. At  best, they may be abettors, but, there is no such charge here.  True, their silence and failure to explain the circumstances in  which they were traveling in the vehicle at the odd hours, is one  strong circumstance  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 CrPC, not even a question was asked that  they were the persons in possession of poppy husk placed in the  vehicle.  The  only  question  put  to  them was  that  as  per  the  prosecution evidence, they were sitting on the bags of poppy  husk.”

9. To  the  driver  also  the  Court  gave  the  benefit  of  doubt  due  to  his  

flawed examination under section 313 of the Code of Criminal Procedure.  

5

The decision in  Avtar Singh has no application to the facts of the present  

case.  

10. No other point was urged before us.  

11. In light of the discussion made above, we find no merit in the appeal.  

It is, accordingly, dismissed.  

……………………………………J.    [AFTAB ALAM]  

……………………………………J.   [R.M. LODHA]

New Delhi, March 11, 2011.  

6