The court upheld the conviction for transporting opium, establishing conscious possession based on the substantial quantity found and the appellant's control over the vehicle.

JUDGMENT :

In this appeal filed under Section 374(2) Cr.P.C ., the appellant, who is the first accused in S.C.No.19/2005 on the file of the Court of the Special Judge (NDPS Act Cases), Vadakara, challenges the conviction entered and sentence passed against him for the offence punishable under Section 18 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act).

2. The prosecution case is that accused 3 to 5 (A3 to A5) entered into a conspiracy to transport opium from Rajasthan to Ponnani in Kerala. As part of the conspiracy, the fourth accused (A4) loaded 10 bags of opium and concealed it in a secret chamber of his lorry bearing registration no.RJ-06 G-2199. A3 and A5 told A4 that they would wait at Ponnani to receive the contraband. Accordingly, A4 instructed accused 1 and 2 (A1 and A2) to take the lorry from Rajasthan to Ponnani in Kerala. Pursuant to the same A1 and A2 knowing that 10 bags of opium had been concealed in the secret chamber of the lorry, transported the same to Ponnani to be handed over to A3 and A5.

3. Crime no.1/2005, Excise Range Office, Sulthan Bathery, that is, Ext.P7 crime and occurrence report was initially registered by PW2, Excise Inspector, Excise Circle Office, Sulthan Bathery against A1 to A3 alleging the commission of the offence punishable under Section 18 of the Act. The investigation was conducted by PW7, Excise Circle Inspector, Kalpetta, who on completion of investigation submitted the final report against 5 accused persons. A4 is alleged to be registered owner of the lorry in which the contraband was transported to Kerala. During the investigation the investigating officer filed a report stating the complicity of A4 and A5 in the crime and also incorporating Section 29 in addition to Section 8 read with of the Act. Hence, as per the final report the accused persons are alleged to have committed the offences punishable under and 29 of the Act. A1 and A2 were arrested at the time of seizure and produced before the Court. A3 to A5 never appeared before the Court in spite of repeated non-bailable warrants being issued against them. As per the final report, A3 to A5 were reported to be absconding and hence the case against A3 to A5 was split up and refiled as S.C.No.2/2006 and the case was proceeded against A1 and A2. The trial court after complying with all the necessary formalities contemplated under Section 207 Cr.P.C ., framed a charge against A1 and A2 for the offence punishable under (b) of the Act, which was read over and explained to the accused persons to which they pleaded not guilty.

4. On behalf of the prosecution PW1 to PW7 were examined and Exts.P1 to P23 and MO.1 & MO.2 series were marked in support of the case. After the close of the prosecution evidence, A1 and A2 were questioned under Section 313(1)(b) Cr.P.C . regarding the incriminating circumstances appearing against them in the evidence of the prosecution. The accused persons denied all those circumstances and maintained their innocence. Both the accused also submitted detailed statements in writing.

5. As the trial court did not find it a fit case to acquit the accused persons under Section 232 Cr.P.C ., they were asked to enter on their defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused persons.

6. On consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found no evidence to find A2 guilty of the offence punishable under Section 18 (b) of the Act and hence acquitted him under Section 235(1) Cr.P.C . However, A1 has been found guilty of the offence punishable under (b) of the Act and hence he has been sentenced to rigorous imprisonment for a period of ten years and to fine of Rs.1,00,000/- and in default to rigorous imprisonment for two years. Set off under Section 428 Cr.P.C . has been allowed. Aggrieved, A1 has come up in appeal.

7. The only point that arises for consideration in