Vinod Kumar vs State of Punjab

K.S. Bhalla, J.—On 16111978 S. 1. Rachhpal Singh (PW1) the then S.H.0. Police Station Amloh, held picketing on AmlohNabha road at a place from where Noorpura link road bifurcated. Excise Inspector Gurdeep Singh (PW 2) and Sarpanch Jangir Singh besides couple of Constables were also members of the picketing party. At about 6.00 P.M., Amar Nath and his son Vinod Kumar came on Royal Enfield motorcycle No. PUC 7070 from the side of Amloh and they were intercepted. Both of them were found carrying 25 kilograms of opium loaded on the motorcycle with them. 15 kilograms of opium was recovered from the basket on one side of the motorcycle contained in two rexin bags which were tied in a cardboard box, whereas 10 kilograms of opium was recovered from a Jhola hanging on the opposite side and that too was contained in a rexin bag. Three different samples were taken from each of the three rexin bags and samples as well as the remaining bulk of opium were sealed separately and taken into possession. Amar Nath and Vinod Kumar were apprehended at the spot. The samples were duly sent to the Chemical Examiner who found the same to be that of opium.

On trial, both Amar Nath and Vinod Kumar were convicted under section 9 of the Opium Act and sentenced to undergo rigorous imprisonment for a period of 21/2 years as well as to pay a fine of Rs. 3,000/ each, in default of payment of which, the defaulter was further to undergo rigorous imprisonment for a period of six months, holding that father and son were in joint possession of the opium. Both the accused preferred appeal separately and their two appeals were dismissed by single judgment dated 1361985 by Additional Sessions Judge, Patiala, maintaining both conviction and sentence. Feeling aggrieved by the said judgment, Vinod Kumar preferred Criminal Revision No 831 of 1985 and his father Amar Nath preferred Criminal Revision No 840 of 1985. This judgment of mine shall look after both the said revision petitions, they having arisen out of same recovery.

The prosecution in support of its case has produced two witnesses with regard to recovery, namely, Inspector (having been promoted in the meanwhile Rachhpal Singh (PW 1), and Excise Inspector Gurdeep Singh (PW2), Both of them have consistently supported recovery of opium from the joint possession of Amar Nath and Vinod Kumar in the manner described above. There does not appear to be much scope for finding fault therewith. Mr. R.S. Cheema, the learned counsel on behalf of the petitioners. has urged two points viz. it has not been shown in the prosecution evidence as to who out of the two was driving the motorbike and that the Investigating Officer could not identify Vinod Kumar in Court.

I do not see any force in any of two contentions of the learned counsel for the petitioners. Undisputedly both Amar Nath and Vinod Kumar were travelling on motorbike PUC 7070 at the time of recovery & commodity recovered was visibly loaded on it. In this situation of the matter, it cannot be said that any of the two petitioners was in no way concerned with the opium which formed the subject matter of prosecution or had otherwise dealt with it. It being so, initial onus was discharged by the prosecution to raise presumption under section 10 of the Opium Act. By the interplay of the presumption under Section 10, the rest of the part stood satisfied and it was no longer incumbent on the prosecution to prove all the necessary ingredients of the offence under section 9 including the fact that the accused had conscious possession. That is presumed against them and it is for them to show that there was want of knowledge on their part about the incriminating opium None of the petitioners could do so. Once the petitioners were found concerned with the opium in question so as to render them accountable for it, they will be presumed to have committed an offence under section 9 of the Opium Act unless they can account satisfactorily for it. They having failed to do so, both are liable irrespective of the fact who was driving that small vehicle.

Liability for joint possession of incriminating article clearly falls within the ambit of the criminal law. With regard to presumption in respect thereof, it was held in State v. Sham Singh and others, I.L.R. (1971) 1 Punjab & Haryana 130, a Division Bench ruling of this Court, that considering the surrounding circumstances and other relevant facts in a given case, an inference of joint possession. control or dominion may legitimately be raised against the occupants of a small vehicle like a motorcar in which contraband is discovered. In this case, the vehicle is still smaller being a motorbike and the contraband instead of having been recovered from the boot of a car, was visibly located on the sides of the pillion sea of the motorbike on which the person other than the driver was sitting. None of the two petitioners can therefore, escape liability and it has rightly been held by the Courts below that they were in joint possession thereof.

Both the petitioners having been apprehended at the spot question Of identity loses all its significance. It hardly makes any difference if Inspector Rachhpal Singh (PW 11), while making statement after lapse of more than three years (his statement having been recorded on 15th of December 1981) pointed out to another son of Amar Nath, namely, Ashok Kumar instead of Vinod Kumar. In any case, we have also the statement of Excise Inspector Gurdeep Singh (PW2) Taking all the facts and circumstances placed on the record including apprehension of the culprits, I am completely satisfied with regard to their identity and argument in this respect does not cut ice with me. No other point was urged on behalf of the petitioners.

For the foregoing reasons, I see no merit in any of the two revision petitions and they are hereby dismissed.