Kalyan Dutta, J.
1. This is an application in revision filed by Gurdayal Singh against the judgment of the Additional Sessions Judge, Bundi, dated 13th November, 1975, in Criminal Appeal No. 73 of 1974, upholding his conviction and sentence under Section 4 read with Section 9 of the Opium Act. The petitioner was convicted for the aforesaid offence by the Chief Judicial Magistrate, Bundi, and sentenced to undergo rigorous imprisonment for one year.
2. The prosecution case against the petitioner was as follows:
3. On 27th October, 1970, at about 9.30 P.M. Shri Bajrang Lal, Superintendent of Police, Bundi, received a credible information upon telephone from some person that truck No. MPO 2550 driven by Gurdayal Singh petitioner was carrying contraband Opium in it on Kota Bundi route. The Superintendent of Police, Bundi, relied upon the information and directed Shri Nagendra Puri, Station House Officer, Bundi, to keep watch on the road and to stop the truck on its arrival, Nagendra Puri accompanied by Ram Niwas, A, S.I. and a few constables reached the Octroi out-post Deopura in the night of 27th October, 1970, and waited for the arrival of the truck.
On 28th October, 1970, at about 8.30 a.m. the truck was seen coming from the side of Kota. As soon as the truck reached the Municipal out-post, Deopura, Nagendra Puri and his party saw that the petitioner was driving the truck and that Amar Singh and Prem Narain were sitting by his side. Nagendra Puri asked the petitioner to stop the truck but the latter turned deaf ears to his request and tried to run away from there. Thereupon, the Station House Officer made efforts to bring the truck to a halt and eventually succeeded in his attempt with great difficulty. The Station House Officer then informed the Superintendent of Police, Bundi, about the arrival of the truck. The Superintendent of Police also rushed to the spot. The truck was then removed to nearby police out-post, Deopura, and was unloaded in the presence of Chauth Mal, Harnath Singh, Prem Shanker and Mool Chand.
Upon search of the goods, it was found that the truck was carrying 150 bags of onion and 10 bags containing as many as 27 small polythene bags full of contraband opium. All the bags were seized by the police in the presence of Mot-birs vide memo of seizure Ex. P-1. Samples of 30 grams were taken from the contents of each of the 27 polythene bags and kept in small 'Dibias' and were sealed after being wrapped in a white piece of cloth. Later on samples were sent to the Director, State Forensic Science Laboratory, Rajasthan, Jaipur, for chemical examination. The Assistant Director, Forensic Science Laboratory, C.I.D., Rajasthan, Jaipur, analysed the samples and made a report Ex. P-15 that the samples contained different percentages of morphine contents varying in between 4.5 and 8.27 percentage.
Eventually, after making usual investigation the police submitted a challan against the petitioner along with Amar Singh and Prem Narain in the court of the Additional Munsiff-Magistrate, Bundi, for trial under Section 4/9 of the Opium Act and under Section 468 read with Section 114, Indian Penal Code. The owner of the truck namely, Kesar Singh absconded after the occurrence and so a charge-sheet was put up against him under Section 512 of the old Criminal Procedure Code. The learned Magistrate proceeded to try the petitioner and his associates. During the course of trial, Prem Narain pleaded guilty to the charge. The petitioner and Amar Singh, co-accused, however, claimed to be tried. As many as 11 witnesses were examined from the side of the prosecution.
The plea taken out by the petitioner in the trial court was that he had been falsely implicated in this case, as he was not carrying contraband opium in his truck. According to his version, two trucks were stopped by the Station House Officer. One was driven by him and the other was driven by Swaran Singh. The Station House Officer released the truck of Swaran Singh and detained his truck for reasons best known to him. Similar was the plea of Amar Singh. The petitioner did not produce any evidence in his defence. The learned Magistrate after careful scrutiny of the entire evidence came to a conclusion that the petitioner was transporting prohibited opium in contravention of the provisions of the Opium Act in his truck No. MPO 2550 and was guilty for the offence with which he was charged. Amar Singh co-accused was also found guilty along with the petitioner.
Aggrieved by his conviction and sentence, the petitioner preferred an appeal in the Court of the Additional Sessions Judge, Bundi, but his appeal was dismissed and his conviction and sentence were maintained. Hence the petitioner has challenged his conviction and sentence by this revision-petition, as stated above.
4. I have carefully gone through the record and heard the arguments advanced by Mr. P.C. Mathur, learned Counsel for the petitioner and Mr, S.B. Mathur, appearing on behalf of the State. It has been strenuously argued by the learned Counsel for the petitioner that mere transport of contraband opium is not sufficient to sustain a conviction under Section 4/9 of the Opium Act and that there is not an iota of evidence that the petitioner was cognizant of the fact that he was transporting contraband opium in his truck. This point has been decided by the two courts below against the petitioner on the basis of certain circumstances.
The first circumstance relied upon by the Additional Sessions Judge is that huge quantity of opium was recovered from the truck driven by the petitioner and the recovery necessarily leads to an inference that the petitioner knew it well about the nature of the goods which were loaded in his truck. The next circumstance on which conviction has been based by the courts below was that the petitioner did not stop the truck when he was asked to do so by Nagendra Puri and that after groat difficulty the Station House Officer succeeded in detaining the truck.
The contention of the learned qounsel for the petitioner is that these circumstances whether taken singly or even cumulatively do not necessarily lead to an inference that the petitioner knew that he was transporting contraband opium and that the 10 bags loaded in his truck contained 27 small polythene bags full of prohibited opium. Mr. S.B. Mathur, appearing on behalf of the State, on the other hand, urged that the conviction of the petitioner can be justified on the circumstantial evidence referred to above and that the High Court in exercise of its powers of revision should not upset a concurrent finding of fact arrived at by the courts below merely because the circumstances established on the record are, in the opinion of the High Court, capable of pointing out to a different conclusion.
5. I have given my anxious consideration to the rival contentions. It is undoubtedly true that, as a general rule, the High Court is slow in revision to interfere with a concurrent finding of fact arrived at by the court below but the court would certainly interfere in cases where such finding is not supported by evidence or is perverse or is such as no prudent man could have arrived at on the evidence adduced in the case.
In the present case, the conviction is founded entirely on circumstantial evidence, which does not inevitably lead to an inference of guilt of the petitioner. The circumstances relied upon by both the courts below may give rise to some suspicion against the petitioner but, suspicion howsoever strong it may be, cannot be a valid substitute for proof. There is nothing in the prosecution evidence pointing out unmistakably to the conclusion that at the time when the bags were loaded in the truck or, at any time thereafter, the petitioner was cognizant of the fact that some of the bags loaded in his truck contained contraband opium.
The only evidence against the petitioner is of Nagendra Puri, Station House Officer, P.W. 10 who merely stated that when he saw the truck coming from the side of Kota. he asked the driver by waiving his hand to stop the truck but the petitioner tried to run away through the barrier of the octroi out-post. Nagendra Puri further stated that on seeing the petitioner making efforts to make good his escape, he gave verbal orders to the gunman to fire a shot at the wheels of the truck in order to cause it to be stopped. Thereupon, the petitioner stopped the truck which was later on searched by the Station House Officer in the presence of Mool Chand, Chauth Mal and others. The mere circumstance that the petitioner did not stop the truck in spite of being asked to do so by the Station House Officer could not necessarily lead to the only inference that he knew it well that he was transporting contraband opium.
It might be that out of fear of being detained unnecessarily by the police or by sheer stupidity on his part he made efforts to cross the barrier. It cannot be lost, sight of that the contraband opium was found inside 27 polythene small bags contained in 10 bags. In the absence of any evidence on the record as to the knowledge of the petitioner, it cannot be saiely presumed from the mere fact that he was carrying bags containing opium in his truck that the petitioner was aware of the presence of opium in these bags. Apart from this, the evidence relating to the circumstance that the petitioner tried to make good his escape through the barrier upon being asked to stop the truck by the Station House Officer, is not free from infirmities.
Ram Niwas, P.W. 8, who had gone with the Station House Officer to stop the truck merely stated that when the truck came at the outpost he along with the S.H.O. and other police Constables caused it to be stopped with great difficulty. He was cross-examined by the learned Counsel for the petitioner. In his cross-examination he further stated that when they wanted to stop the truck, the petitioner tried to take away the truck by giving it a turn. But on being threatened that the tyres of the truck would be burst by the police, he stopped it. Chota, P.W. 10, (?) did not corroborate the above version of Ram Niwas, P.W. 8. He, on the other hand, stated that at the sight of the police the petitioner began to drive the truck at a fast speed but the Station House Officer stopped it at the risk of his life.
Nagendra Puri P.W. 10, on the other hand gave out altogether a different version by stating that when the petitioner was trying to run away, he gave a verbal order to the gunman to fire a shot at the tyres of the truck and that the petitioner thereafter stopped the truck. The evidence of Ram Niwas, Chota and Nagendra Puri does not inspire confidence because Nagendra Puri admitted in his cross-examination that when the truck reached the outpost the road was closed on account of the barrier of the octroi out-post, If there was no free passage on the road for the truck on account of the barrier of the octroi out-post, it is not understandable how the petitioner could think of taking away the truck by driving it at a fast speed.
It appears that on account of the obstruction caused by the barrier of the octroi out-post the petitioner stopped the truck of his own accord and that the witnesses made a false statement against him that he made an attempt to drive the truck at a high speed at the sight of the Station House Officer and his companions. As stated earlier, 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 fact alone does not inevitably lead to an inference that he did so because he knew that he was transporting contraband opium in his vehicle.
6. Another circumstance on which reliance has been placed by both the courts below in holding the petitioner guilty of the offence is that a huge quantity of opium was recovered from the truck which he was driving. This circumstance also does not amount to reliable evidence of his possession and control over the opium that was lying concealed in small 27 polythene bags contained in 10 bags, nor does mere recovery of huge quantity of opium lead unmistakably to the conclusion that the petitioner had knowledge of the contents of the bags. Therefore, there is no evidence sufficient in the eye of law to convict the petitioner under Section 4/9 of the Opium Act. In the circumstances of the case, no presumption 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 vehicles, nor could it be safely inferred that he was in conscious possession or control of anything found in the bags.
7. The revision-petition is, therefore, accepted, the conviction and the sentence awarded to the petitioner by the Chief Judicial Magistrate, Bundi, and, confirmed by the Additional Sessions Judge, Bundi, are set aside and he is acquitted of the charge punishable under Section 4 read with Section 9 of the Opium Act. The petitioner is in jail. He shall be released forthwith, if not required in connection with some other case.