Contraband - Concious Possession - When prosecution has not collected any evidence to connect appellant with the recovery of contraband, then he cannot be said to be in conscious possession of them. No presumption under Sections 35 & 54 of the NDPS Act can be drawn against him.

1. Vide this judgment, I shall be disposing of the aforecited three appeals as the same arises out of one and the same judgment.

2. The aforesaid three appellants have suffered conviction vide impugned judgment of learned Special Judge, Moga dated 15/1/2003, under section 15 of the Narcotic Drugs and Psychotropic Substances act, 1985 (for short the act) and have been sentenced to undergo RI for ten years each and to pay a fine of Rs one lac each, in default thereof to further undergo RI for one year each. Sapurdari of Truck No. PAT-9106 in which the alleged contraband was being carried was also cancelled. Aggrieved by the said judgment of conviction and sentence, the aforesaid three appellants have preferred the present three different appeals.

3. The case of the prosecution in short is that on 28.8.1991, asi Kuldip Singh PW5 who was Incharge of Police Station Badhni kalan and ASI Tek Singh PW3 and other police officials were present on the road crossing known as Bhiana Chowk situated on Moga Barnala road, in the area of village Badhni Kalan in connection with nakabandi. At about 4.45 AM, one truck bearing No. PAT-9106 appeared from the side of village Badhni Kalan. A signal was given to the driver to stop the truck. The driver consequently slowed down its speed. Two persons were found sitting on front seat of the truck and one person was sitting on the backside, alighted from the truck and ran away on seeing the police party. The truck was being driven by appellant Shambu Nath and joga Singh appellant was sitting on the front side of the truck by the side of Shambu Nath. Both of them were apprehended by ASI Kuldeep Singh with the help of other police officials. They disclosed their names and other particulars. The name of the third person known as Hansa Singh (appellant herein) was disclosed by aforesaid two persons on interrogation. ASI Kuldip Singh told them that he had suspicion that they were carrying some contraband articles in their truck and, therefore, he wanted to conduct its search. They were also apprised of their statutory right to be searched in the presence of gazetted officer or magistrate. In the meantime, DSP Bachan Singh Randhawa PW6 also reached the spot in order to check nakabandi. It is then the case of the prosecution that both the appellants opted to get their search conducted in the presence of Bachan Singh Randhawa DSP. In this regard their consent memo Ex. PB was prepared which was attested by ASI Tek singh and ASI Jagtar Singh and other police officials accompanying the police party. It was also signed by appellant Shambu Nath and thumb marked by appellant Joga Singh. On the direction of DSP Bachan Singh randhawa, ASI Kuldip Singh conducted the search of the truck and found 40 bags of poppy husk loaded in the truck under the tarpaulin.250 grams of poppy husk was separated out of each bag as sample and the remaining poppy husk in bag on weighment came to be 40 kgs in each bag. All the samples and 40 bags containing the remainder were sealed by ASI Kuldip Singh with his seal having inscription ks. Sample seal ex. P1 was also prepared separately. DSP Bachan Singh Randhawa also fixed his seal on parcel and 40 bags containing the remainder with his seal bearing inscription bsr. He also put his specimen seal on sample seal Ex. P1. The case property was then taken into possession vide recovery memo Ex. PC, attested by the aforesaid two police officials namely Tek Singh and ASI Jagtar Singh. The appellants could not produce any permit or licence for keeping the contraband. Therefore, ruqa Ex. PF was sent to the Police Station on the basis of which formal fir Ex. PF/1 was recorded. The truck No. PAT-9106, driving licence of shambu Nath Ex. P42 and registration certificate Ex. P43 were also taken into possession vide recovery memo Ex. PD attested by the aforesaid witnesses. Some amount was also recovered on a personal search of Shambu Nath and Joga Singh appellants. Other formalities were completed at