J.S. Bedi, J.
1. This order shall dispose of three revision petitions Nos. 371 (by Bant Singh), 377 (by Pritam Singh and Nichhattar Singh), and 883 by (Sikandar Singh and Sampuran Singh) of 1965, as they arise out of the same transaction and the same order dated 30th March, 1965, of Shri Murari Lal Puri, Sessions Judge, Ludhiana.
2. The prosecution story, in brief, is that on 11th February, 1964, S. I. Babu Ram on receipt of secret information, organised a party consisting of himself, Udhe Singh of village Sahnewal Khurd and Sarwan Singh of village Kot Gangu Rai, P. Ws., and Sant Singh and held a Nakabandi near the railway crossing on the Kohara Sahnewal road at about 6-30 p. m. After about fifteen minutes, truck No. PNA-4571 (Exhibit P. 20) driven by Pritam Singh petitioner came from the side of Kohara. It was stopped by the Sub-Inspector and he recovered 19 bags (P. 1 to P. 19) containing poppy-husk from the truck. Sampuran Singh petitioner was sitting with the driver in the front seat, Sikandar Singh and Bant Singh were sitting on the bags in the body of the truck, while Nichhattar Singh was sitting in a corner of the truck. All these petitioners, it may be mentioned, belonged to village Sahnewal Khurd. The Sub-Inspector took samples of 200 grams from each of the bags which were later on sent to the chemical examiner who found the same to be poppy-husk. The Sub-Inspector sent a ruqa (Exhibit PF) to the police station an the basis of which a case against the petitioners was registered under Section 9 of the Opium Act.
3. On the above facts the petitioners were sent up for trial before a Magistrate of the first class at Ludhiana, who on 23rd February, 1965, convicted all the petitioners under Section 9 of the Act and sentenced Pritam Singh to one year's rigorous imprisonment and a fine of Rs. 500/- or in default of the payment thereof to suffer further rigorous imprisonment for three months, Sikandar Singh and Bant Singh to three months' rigorous imprisonment and a fine of Rs. 200/- each or in default of its payment to undergo one month's rigorous imprisonment, Nichhattar Singh to rigorous imprisonment for two months with a fine of Rs. 50/- and in default of its payment to further rigorous imprisonment for 15 days, and Sampuran Singh (who was an old man of 70 years) to imprisonment till the rising of the Court with a fine of Rs. 200/- and in default of the payment thereof to suffer rigorous imprisonment for two months.
The Magistrate further directed the issuance of a notice to Pritam Singh why his truck (PNA. 4571) be not confiscated to the State. The petitioners went up in appeals which were dismissed by Shri Murari Lal Puri, Sessions Judge, Ludhiana, on 30th March, 1965. He, however, reduced the sentence of Pritam Singh only to three months' rigorous imprisonment and the fine to Rs. 200/- and also set aside the order of the Magistrate regarding confiscation of the truck of Pritam Singh. The petitioners are still aggrieved and have approached this Court in revision petitions.
4. In their examination under Section 342, Criminal Procedure Code, the petitioners denied the prosecution allegations. Pritam Singh added that the police met him at bus-stand of Sahnewal and enquired about the whereabouts of the driver of the truck and on his failure to furnish the information he was implicated in this case. The plea of Nichhattar Singh was that a relation of his was in police service at Sahnewal police station. The Sub-Inspector was inimical to that relation which resulted in the false involvement of this petitioner. The rest of the petitioners admitted their presence in the truck at the relevant time adding that on account of non-availability of a bus they requested Pritam Singh petitioner to give them a lift in the truck who agreed to do so.
5. The prosecution examined Udhe Singh and Sarwan Singh P. Ws. besides S. I. Babu Ram as witnesses to the recovery who supported the prosecution case in its entirety.
6. The petitioners' counsel submitted that even if the facts given by the prosecution are taken to be correct, still none of the petitioners could be held to be guilty as it could not be said that they were in conscious possession of the incriminating article. The proposition put forward by the counsel is correct as possession implies knowledge and there would be no possession when there is no knowledge on the part of the ostensible occupant of the cabin or room or the article as the case may be. Possession without knowledge can hardly have been meant since in that case the element of criminal intention or knowledge would be entirely wanting.
When there is undoubtedly ground for grave suspicion regarding possession against the accused, out the element of reasonable doubt is not excluded, it would not be safe to conclude that the accused had the knowledge which is necessary to convict him of the offence. The onus of proving that knowledge is upon the prosecution, and relying solely upon the bare fact that the opium (or the incriminating article) was found in the accused's cabin without proof of any additional or extraneous Facts to establish any connexion between him and the opium is not sufficient to discharge that onus see Cyril C. Baker v. Emperor, AIR 1930 Cal 668. The same view is propounded In State of Himachal Pradesh v. Buti Nath, AIR 1957 Him Pra 37. Applying these tests to the present case, I find that there is nothing whatsoever in this case to connect the petitioners with the incriminating article or their knowledge thereof.
It is stated that Sampuran Singh petitioner was sitting with the owner-driver Pritam Singh while the other three were sitting on the bags in the back of the truck. The learned Additional Sessions Judge was of the view that as the three petitioners, namely, Sikandar Singh, Bant Singh and Nichhattar Singh, were sitting in the back of the truck (Sikandar Singh and Bant Singh on the bags in it and Nichhattar Singh in a corner), they must, therefore, have known of its contents. In this connection my attention was drawn to the evidence of Udhe Singh P. W. who admitted in cross-examination that after the bags had been taken down from the truck they were opened and found to contain poppy husk and only after opening the bags he came to know that they contained poppy-husk. Similar is the statement of Sarwan Singh P. W. who admitted in cross-examination that when the bags were opened it was only then that he came to know that the bags contained poppy-husk.
There is, therefore, not a scintilla of evidence against these four petitioners, namely, Sinkardar Singh, Bant Singh, Nichhattar Singh and Sampuran Singh, that they were in conscious possession or the poppy-husk. Against Pritam Singh, the learned appellate Judge presumed that as he was the owner-driver of the truck he must necessarily know what was being loaded in his truck. This is only a conjecture. In most cases, the answer is yes, but not in all. The State counsel wanted to connect Pritam Singh with the knowledge of the incriminating article from the fact that no entries relating to the goods were made in the log book which is carried by such vehicles. But no question was put to Pritam Singh why no entries were made therein and, if made, by whom. Although, therefore, there is grave suspicion that Pritam Singh most probably knew about the nature of contents which he was carrying, but no certainty. I have no doubt that if this case had been properly investigated, at least some of the petitioners could have been successfully connected with the conscious possession of the incriminating article. As it is, I feel that all the petitioners should be given the benefit of doubt and acquitted. I order accordingly.