JUDGMENT

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 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 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 carryin