M.C. Jain, J.
1. The petitioners Satya Narain, driver, and Gangadhar, cleaner, of the Taxi car No RJZ 5459, have been convicted of the offence Under Section 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 2-9-1978, 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 (PW 5) with his party had, led 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 Mandsaur and going towards Chittorgarh. A sig at 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 over-took it. At the time, when the car was stopped, the two occupants of the car ran away. The driver of the car Shri Satya Narain and the clearer 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 Satyanarain with his kay. The dicky contained four bags having seven regzine bags in them The regzine bags were weighed and on weighing, 60 kilo grams and 200 grams opium was found in them. The recovery memo Ex. P/1 was prepared, three samples of 32 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 Sation, Bhadsoda, whereupon case Under Section 4/9, Opium Act, was registered. On analysis of the samples it was found that the substance recovered was opium The petitioner, 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. That 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.
3. I have heard Shri M.M. Singhvi, learned Counsel for the petitioner and Shri Niyazuddin Khan, learned Public Prosecutor, for the State.
4. 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 carrying the passengers along with the goods loaded by them and put in the dicky. He invited my attention to the statement of PW 7 Raghunath Prasad, Deputy Nartotics Commissioner, Neemuch, who has deposed in the cross examination that he does not know that the accused Satyanarain 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. PW 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. Alonough PW 5 Shri Roshan Lal and PW 8 Babulal have given a different version, other than the version given by PW 7 Shri Raghunath Prasad, as to whether Satyanarain expressed it or not that the bags belonged to those who had run away. Both these witnesses, PW 5 Roshan Lal and PW and Babulal, Sub-Inspector Narcoties, have stated that Satyanarain did not express that the goods belonged to the passengers who had run away. My attention has also been invited be Shri Singhvi to the statement of the owner of the car PW 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 have 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 Chittore. Mr. Singhvi contended that the statement of PW 7 Raghunath Prasad is not in harmony with the statement of PW 5 Roshan Lal and PW 8 Babulal PW 7 Raghunath Prasad has pleaded ignorance of what Satya Narain had expressed and the other two witnesses have denied that Satyanarain expressed that the goods belonged to those, who had run away.
5. It may be mentioned that whatever Mohanlal (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 Mohanlal, PW 7 Raghunath Prasad and PW 8 Babulal are all officials of the 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 is their contents, as has been stated by PW 5 Roshanlal 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.
6. The learned Public Prosecutor submitted that conduct of the driver shows his guilty conscious in as much as be, instead of stopping the car on a signal having been given to him, he sped away the. ear. 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 be a decision of this Court in Gurdayalsingh v. The State of Rajasthan 1976 WIN 28. 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 mere circumstance that the petitioner did not stop the truck insrite 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 fact alone does not inevitably lead to an inference that he did so because he knew that be 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 anything 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 in 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.
7. In the result, the revision petitioner is allowed, the conviction and the sentence of the petitioners 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.