V.D. Gyani, J.
1. This appeal arises out of the judgment dt. 25-4-88, passed by the Additional Sessions Judge, Neemuch in Sessions Trial No. 167/87, thereby convicting the appellant under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act') and sentencing him to undergo rigorous imprisonment for ten years with fine of Rs. 1,00,000/- or in default of payment of fine, to suffer R.I. for one year.
2. There is yet another connected appeal Cr. A. 201/88 Dinesh v. Union of India, arising out of the same judgment preferred by another co-accused Dinesh. Both Kalekhan and Dinesh were charged and tried together. Dinesh has been convicted Under Section 8/25 of the Act and similarly sentenced as accused appellant No. 1 Kalekhan. Both these appellants have been convicted and sentenced by a common judgment. The appeals were heard together and are being decided by a common judgment.
3. The charge against accused appellant Kalekhan was that on 11-8-87, around 5.00 a.m. in village Telankhedi he was found to be carrying 9 kg. 500 gms. opium in a car bearing registration No. RJB 7409 which was recovered from his possession. The charge against accused appellant No. 2 Dinesh was that he knowingly permitted the aforesaid car, of which he was the owner, for illegal transportation of opium.
4. Prosecution examined in all four witnesses to prove the charge against the accused appellants. These witnesses include the Chemical Analyser K. P. Pillai (PW 1), Omprakash -- a panch witness -- PW2, the Narcotic Inspectors Shivphersing Yadav --PW 3 and Abdul Samad Khan -- PW 4. The Panch witness Omprakash PW2 has not supported the prosecution case and was declared hostile. The other Panch witness to the search, seizure and recovery has not been examined by the prosecution.
5. Prosecution case, stated in brief, Was that the officials of Narcotic Department had information about illicit traffic of opium. Accordingly the preventive staff including Inspector Yadav, who lodged the F.I.R. Ex. P. 8, left in a jeep towards Nimbakhedi and Chhoti Sadri on 10th evening. Around 5.00 a.m., car No. RJB 7408 was checked at the barrier and three polythene bags, containing opium were found, concealed in the left hand side door of the said car. A seizure memo Ex. P. 2 was prepared, accused Kalekhan was arrested vide arrest memo Ex. P. 4 and thereafter report F.I.R. was lodged.
6. As noted above, the prosecution case is not supported by independent Panch witnesses and the other Panch witness has not been examined by the prosecution, it solely higges on the testimony of Shivphersingh PW 3 and Abdul Samad Khan PW 4 --inspectors belonging to the Narcotic department. So far as Abdul PW 4 is concerned, he had merely investigated the case. He does not claim to be present on the spot at the time of search and seizure of the car. Thus the conviction rests on the sole testimony of PW 3. It is his evidence which has been relied upon by the trial Court for recording conviction against the appellants. But that is no reason to discard to the same weight and credibility as any other witenss provided, of course there is no infirmity in their testimony. Absence of corroboration by an independent witness merely calls for a closure scrutiny of evidence and not outright rejection, for want of corroboration by an independent witness. A public servant is not to be disbelieved merely because he is a public servant.
7. Now coming to the evidence on record, as evident from F.I.R. Ex. P. 8, Inspector Yadav PW. 3 had set out for Nimbakhedi and Choti sadari under instructions of the Superintendent, Central Narcotic Bureau, Neemuch. Learned counsel appearing for the appellants contended that this so called F.I.R. Ex. P. 8 is certainly not the first Information' Report, as is clear from its reading. It is the result of the investigation. It cannot, therefore, be treated either as the F.I.R. or the earliest version of the prosecution case and needs to be noted that this earliest version has not been produced or placed on record by the prosecution -- a vital fact which the trial Court has missed to consider.
8. It was the prosecution case that there were three persons in the car including the car driver Kalekhan, who was driving the car; the two others made good their escape, taking advantage of darkness.
9. Kalekhan, in his statement recorded under Sections 313, Cr. P. C, has not disputed the fact that he was driving the car and there were two others in. the car who ran away. He has, however, denied the seizure of opium.
10. Adverting to the evidence of Shivpnersing Yadav PW 3, he has stated that he was accompanied by Sub-Inspector Kothari and two constables Bherusingh and Mohan Rajoriya and driver Sevaram reached Telankhedi around 4.30 a.m. He has further deposed that on reaching Telankhedi, he asked Sub-Inspector Kothari to go to the village and call two Panchas. He accordingly brought Prahladsingh (not examined) and Omprakash (PW 2). This clearly goes to show that there was prior information and what was that information, has not been placed by the prosecution. This witness has further deposed that he asked Sub-Inspector Kothari to check the car, which he accordingly did. The other inmates alighted from the car. The other two, who were sitting at the rear seat, ran away while appellant Kalekhan was caught. On search, two packets containing opium were found concealed in the gap of the left hand side of the door of the car. It took about one-and-half hours.
11. The evidence of Abdul Samad Khan PW. 4, the Investigating Officer, may also be seen. As admitted by him it was on 11-8-1987 that he was entrusted with the investigation of the case. More than two months after the incident the statement of independent Panch witnesses. Omprakash PW. 2 and Prahlad (not examined) were recorded by him on 14-10-1987. Although the I.O. PW.4 had received the sample on 11-8-87 itself from Shivphersingh Yadav PW. 3, it was sent for Chemical Analysis on 16-8-87. The I.O. does not say a word as to why it was retained for three days before being sent to the Govt. Opium and likaloid works. Neemuch a laboratory locally situated. The rest of his evidence relates to the arrest of accused Dinesh.
12. It would thus be seen that this is essentially a case depending on the testimony of a solitary eye witness namely Shivphersingh Yadav PW 3. The only independent witness, Omprakash PW 2 examined by the prosecution, has turned hostile. Even in his case, it may be noted that his entire evidence need not be discarded on that ground; but going through the whole of his statement, particularly the cross-examination as done by the Public Prosecutor, the witness has denied that he was called to the spot by the officials of the Narcotic Department around 5.00 a.m. He has also denied the seizure of opium, taking of sample and sealing the same. He was confronted with his previous statement Ex. P. 7, and witness frankly denied having made any such statement. As noted above, this statement was recorded for more than two months after the incident. This delay in recording the statement of witness, said to be present on the spot at the time of search and seizure, remains unexplained. What is more surprising is that Omprakash PW 2 in his evidence stated that it was after sunrise and not around 5.00 a.m., as claimed by the prosecution that a constable from the Narcotic Deptt. had taken him to Telenkhedi barrier where he was told by the officer of the Narcotic Deptt. that opium had been seized. Even when cross examined by the public prosecutor on this point, his testimony has remained unshaken. Prosecution has not chosen to examine the constable Bherusingh or the Sub-Inspector Kothari, who according to the Inspector Shivprasadsingh PW 3, were sent for summoning two Panch witnesses from village Telankhedi. As deposed to by Yadav PW 3. It was Sub-Inspector Kothari, who had prepared the Panchanama at his behest. Both the Sub-Inspector as well as the constable belong to the same Narcotic Deptt. What prevented the prosecution from examining them as witnesses before the Court?
13. The trial Court has not at all considered these laches and lapses in the investigation of the case. Ordinarily, these laches may not be of much consequences, as rightly urged by Shri A. H. Khan, learned counsel appearing for the respondent. But there is peculiar feature of this case. Two other inmates of the car had been allowed to escape, although PW 3 Yadav says that they ran away. It is in this context that the spot map ' Ex. P. 6, assumes importance. It was non Neemuch Sadari road, that the car was checked. A hotel, just opposite the place of interception on the other side of the road, is, not only shown in the spot map Ex. P. 6 but also admitted by Shivphersingh PW 3 in his evidence (see paragraph 7 of his statement). Yadav PW 3 has stated that those two inmates of the car were chased by constable Bherusingh and Ramesh, a second driver of the Govt. jeep. Neither the Inspector nor the Sub-Inspector made any attempt whatsoever to chase those two who either managed to escape or their escape was managed and connived at. As already noted above, Inspector Yadav PW 3, was accompanied by Sub-Inspector Kothari, constables Bherusingh and Mohan Rajoria along with jeep driver Sevaram. The other driver, who was chased was Ramesh. They had a jeep with them. None of them, not even constable Bherusingh and Ramesh have been examined by prosecution.
14. Learned counsel Shri Trivedi appearing for the appellant Kalekhan, therefore, urged that in face of these lacunae in the prosecution the sole testimony of witness Shivphersingh Yadav PW3 on Inspector of the Narcotics Deptt., obviously interested in the success of his case, should not be relied upon for sustaining the conviction recorded against appellant Kalekhan. He streneously urged and stretched that it was a case of conveniently letting off the real culprits or conniving their escape while catching hold of the driver. Learned counsel argued that the trial Court was palpably wrong in shifting the burden of proof on the accused by observing that the facts were within the special knowledge of the accused. Learned counsel questioned, how could this knowledge be imputed to the accused, even if the opium concealed in -_ the door gap, is recovered merely because appellant Kalekhan was found to be driving? There is no iota of evidence to show that the appellant Kalekhan had knowledge of the opium being concealed in the side door of the car.
15. - Shri A. H. Khan, learned counsel for the respondent submitted that in the circumstances of the case it should be presumed that the fact of concealement of opium was within . the special knowledge of the accused. Again except for the fact that accused Kalekhan was seen driving the car and was caught on the spot, there is no circumstance brought on record from which can be inferred that the accused had knowledge of concealment of opium in the hollow gap of the door. This knowledge has to be established by the prosecution before the accused could be called upon to explain and the fact that two persons were allowed to escape, cannot be overlooked in this context. No efforts were made to chase them; except for two constables Bherusingh and Mohan (not examined) who were said to have chased the escaping accused. There is absolutely nothing in the prosecution evidence either of Shivphersingh PW 3 an Inspector present on the spot or the I.O.P.W. 4, to show as to what efforts were made to trace the escaping accused. The prosecution has not adduced an iota of evidence to establish a link between the escaping accused and driver.
16. The learned Judge of the trial Court placing reliance on short Note of a Judgment, as reported in Naharsingh v. State of M.P., 1985 MPWN 444 has come to the conclusion that the opium recovered from the car, was in possession of accused Kalekhan and found him guilty on that account.
17. The case relied upon by the trial Court was a case of murder and causing disappearance of evidence of offence. The whole family was prosecuted for murder of daughter-in-law Premkunwarbai. A false information of death due to snake bite was given to screen the offence. The accused-appellant Vikramsingh, who lived with his wife absconded soon after post mortem examination of his wife Premkunwarbai. His defence was that he was sleeping outside and had left for the field early in the morning and it was around 7.00 a.m. that he came to know about the death of his wife when he was in the field. As against the report of death due to snake bite, a number of injuries, including fracture of the ribs, were found and in the opinion of the doctor, who performed autopsy, Premkunwarbai had died of excessive bleeding and shock. No case of snake bite, as reported, was found. It was in this factual background, of the case, coupled with others, that the learned Judge held the accused guilty. The learned Single Judge of this Court upheld the conviction of the husband.
18. This case relied upon has been reported as a short note. As it is a case from this very Bench, the record was. sent for. It is highly desirable that short notes, as precedents, should be avoided, as they lack in facts. However, so far as the particular case is concerned, even from the reported Short Note, particularly the paragraph which records conclusion, the inference as drawn by the trial Court is not supportable. The learned Judge would have done well to refer to any standard testbook of law rather than referring to a short note.
19. Section 8 of the Evidence Act lays down that motive, preparation and previous or subsequent conduct provides, (sic) is a relevant fact and as has been pointed out by the Supreme Court in Anant Chintaman Lagu v. The State of Bombay, AIR 1960 SC 500: (1960 Cri LJ 682); so far as conduct of an accused is concerned, a criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine, whether he is guilty of offence charged and in this context, that piece of conduct, can be held to be incriminatory, which has no reasonable explanation, except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material. Although the trial Court has not attributed any specific piece of conduct so as to infer any incriminating circumstance against the accused-appellant Kale-khan the only fact proved against him is that he was the driver of the car and this fact should be seen in the light of the other established fact that two persons sitting in the car had either escaped or allowed to escape when the car was intercepted and checked, and no efforts worth its name were made to chase or trace them. It is the prosecution case that opium was found concealed in the hollow gap of the door of the car.
20. Section 18 of the Act provides for punishment for possession or transportation of opium. Possession is made up of two elements; firstly the corpus, -- the element of physical control and secondly -- the animus or intent with which such control is exercised. It is conscious possession, which is contemplated by penal statute, which provides and penalizes possession of any contraband article or thing. A driver of a vehicle, is certainly in possession of the vehicle in question, but he cannot be said to' be in possession of any article or thing concealed in the body of the vehicle, unless there are circumstances indicating knowledge to the driver of such concealment. Thus, like a person in possession of land, does not become the possesor unless he is aware of its existance. Prosecution has not chosen to adduce any evidence whatsoever to suggest, muchless establish that accused Kalekhan had knowledge of concealed opium in the left side door of the car which he was found to be driving. It is this guilty knowledge of being possessed of a contraband which exposes the person in possession of penal consequence of such possession.
21. Shri Khan, learned counsel appearing for the respondent urged that guilty knowledge can be infered from circumstances. As a proposition, it is all right that guilty knowledge can be inferred from established circumstances. But this is a case where except for the circumstance that the accused was driving the car in question, there is no other circumstance whatsoever. The investigation has not been pursued in the direction to connect the accused with the knowledge of the concealed article. It is all the more necessary that two of the inmates sitting in the rear seat of the car have very confortably and conveniently escaped under the very nose of the authority. Can it be said knowledge or no knowledge? The accused must be held guilty of the offence.
22. This Court in Matadin v. State of M.P. 1980 Cri LJ 186, has pointed out that so far as possession is concerned, corpus without animus is ineffective, but if animus is established it does not matter whether the possession is actual or constructive. The prosecution has miserably failed in establishing such circumstance which would have pointed to that essential ingredient 'animus'. In a case where a rickshaw driver with passenger was found to be carrying prohibited articles without knowing the contents; the Supreme Court in Jawar Arjan v. State of Gujarat AIR 1979 SC 1500 : (1980 Cri LJ 828) held that the rickshaw driver had no conscious possession and was, therefore, entitled to an acquittal. The principle laid down applies fully to this case as well.
23. It may be noted that at the time of personal search of Kalekhan, when he was arrested, except for an amount of Rs. 15/-, nothing else was found.
24. Lastly, it was urged by Shri Khan that accused Kalekhan has not explained his possession. The question of explaining possession would arise only when it is established that Kalekhan had knowledge of concealment of opium and, as discussed above, the same has not been proved as a fact or by establishing circumstances pointing to the fact.
25. Shri Khan, learned counsel appearing for the department referred to Ex. D. 1-a report lodged at Police station, Banswada, submitted, that this report clearly shows accused appellant Kalekhan's complicity in smugglling of opium. Before this report can be made use of against appellant Kalekhan it must have been put to him in the statement recorded under Section 313 Cr. P.C. Apart from the question of admissibility and binding effect of an admission by a co-accused against another, the fact remains that the report, Ex. D. 1, has not been lodged by co-accused Dinesh; secondly no body has come forward to prove the contents of the documents Ex. D. 1 and even treating it as a First Information Report, under Section 154 Cr. P.C, the statement contained therein not being made by an accused, it cannot be used against the co-accused. Prosecution must stand of its own strength. The report Ex. D. 1, is merely a document which the co-accused Dinesh had produced at the time of recording of his statement under Section 313 Cr. P.C. The trial Court has not considered it.
26. Going through the impugned judgment, it is clear that it was not pressed into service, so far as accused appellant Kalekhan is concerned, nor has the trial Court referred to it while dealing with the case of Kalekhan and Shri Trivedi, pointed out that even as regards other accused-appellant Dinesh, the trial Court has rejected this document (see para 18 of the impugned judgment). In any case, so far as appellant Kalekhan is concerned, the statements contained in Ex. D. 1, cannot be made use of against him. The Supreme Court in S.P. Bhatnagar v. State of Maharashtra AIR 1979 SC 826 : (1979 Cri LJ 566) has clearly pointed out that defence taken by one accused cannot in law, be treated as evidence against the co-accused. There is yet another difficulty in using it against Kalekhan, it has not been put to him while examining him Under Section 313 Cr. P.C. The law on the point is settled. If any authority is needed, reference may be made to Shamu Balu Chaugule v. State of Maharashtra AIR 1976 SC 557: (1976 Cri LJ 492).
27. For the foregoing reasons Kalekhan's conviction and sentence, as recorded by the trial Court, cannot be sustained. It is liable to be quashed and is accordingly quashed. He is acquitted of the charges framed against him. Fine, if paid by appellant Kalekhan, be refunded to him. He be released forthwith.
28. Now coming to the case of appellant Dinesh, he has been convicted under Section 8/25 of the Act. The charge against him was that he knowingly permitted his car to be used for carrying opium. Admittedly the only evidence adduced by the prosecution against him is that he was a registered owner of the car, but that by itself is not sufficient to sustain charge Under Section 25 of the Act. The crux of the charge lies in knowingly permitting the vehicle. Term 'Knowingly' which is an essential ingredient of the offence punishable Under Section 8/25 of the Act.
29. As has been noted above, there is no witness not even the Investigating Officer, Abdul S. Khan P.W. 4, to prove this essential ingredient 'knowingly' permitting the vehicle, in question, to be used for commission of an offence under the Act, Neither Shivphersingh PW. 3 nor Abdul Khan PW. 4 say a word against appellant Dinesh that he knowingly permitted his car to be used for commission of an offence. Even if all that has been stated by them is taken on its face value, yet no such inference can be drawn on the basis of their statements that accused appellant Dinesh knowingly permitted his car for transporting opium. It is a cardinal rule of jurisprudence that the prosecution case must stand on its own legs. It cannot depend on the weakness of the defence. Shri Khan, learned counsel for the respondent streneously urged that Ex. D. 1, clearly established complicity of appellant Dinesh. This document has been dealt with above while considering the case of Kalekhan.
30. Shri C. R. Joshi, learned counsel appearing for the accused appellant Dinesh referring to para 18 of the impugned judgment submitted, that the trial Court having rejected the documents produced by the accused, could not have legally convicted him on the basis of the prosecution evidence, which is sadly lacking in proof of the essential ingredients of the offence.
31. The trial Court has recorded conviction against appellant Dinesh mainly on two grounds:
i) That the report Ex. D. 1, clearly establishes guilty mind of the accused-appellant Dinesh, and
ii) Appellant Dinesh in his statement recorded under Section 313 Cr. P.C. has not given any explanation whatsoever regarding the circumstances in which the car was taken by accused Kalekhan.
32. Shri Khan learned counsel for the respondents has heavily relied upon these grounds for supporting the conviction of appellant Dinesh.
33. A factual error which has crept in may be noticed. The report Ex. D. 1, has been lodged by one Basantilal while the trial Court has taken and treated it to have been lodged by appellant Dinesh and it is on this basis that the trial Court expected of the accused appellant Dinesh, to have explained the circumstances in which his car was taken away. At one stage, the learned Judge of the trial Court has rejected this report Ex. D. 1 as of no consequence. Having done so, how could the trial Court draw an adverse inference against the accused? Rajection of defence plea does not necessarily prove the prosecution case. The initial burden of proving its case lies on the prosecution and this initial burden has not at all been discharged by the prosecution. The trial Court again has drawn an adverse inference against the accused for not explaining the circumstances in which his car was taken away by accused Kalekhan. Drawing of such an adverse inference is clearly prohibited Under Section 313 (3) Cr, P.C. and under Sub-section (1) of Section 313 (3).
34. As a general rule, the statement of an accused recorded Under Section 313 Cr. P.C, if it is to be used as an admission, it must be read as a whole; It is not proper for any court to accept the incriminating portion and reject the exculpatory one. See (i) Karnail Singh v. State of Punjab AIR 1954 SC 204 : (1954 Cri LJ 580) (ii) Palvinder v. State of Punjab AIR 1952 SC 354 : (1953 Cri LJ 154).
35. Sub-section (3) of Section 313 Cr. P.C. clearly provides that the accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. While it is true, that failure of the accused to mention a particular fact in his statement Under Section 313 Cr. P.C. may weaken his plea or defence but this again would be no substitute for proving the offence charged.
36. A conviction cannot be based solely on the statement recorded Under Section 313 Cr. P.C. (See State of Maharashtra v. Dr. R. B. Choudhari AIR 1968 SC 110 : (1968 Cri LJ 95) for the simple reasoning that it is no evidence much less substantive evidence, although it can be considered in conjunction with other evidence on record but not in isolation. The statement made by an accused Under Section 313 Cr. P.C. distinctly falls in two parts; one-inculpatory and the other-exculpatory and if the evidence on record disproves the exculpatory part of the statement it is permissible for the Court to accept that part of the accused's statement which is in accordance with the evidence on record. The difficulty in the present case is that there is absolutely no evidence on record to show that appellant Dinesh knowingly permitted his car to be used for concealing and carrying opium. Therefore, the non-explanation on his part is of no consequence nor can any adverse inference, as has been drawn by the trial Court, could have been drawn on that-account. The object of examination of an accused Under Section 313 Cr. P.C. is to afford an opportunity to the accused to explain the incriminating circumstances appearing against him in the evidence adduced by the prosecution. As has been noted above, there is absolutely no evidence adduced by the prosecution to show muchless to prove, that appellant Dinesh knowingly permitted his car for being used for transporting opium. Silence of the accused is of no consequence. Prosecution has to prove its case to the hilts. (See Bishan Dass v. State of Punjab AIR 1975 SC 573: (1975 Cri LJ 461)).
37. The crux of the offence under Section 25 of the Act lies in knowingly permitting, use of any place or conveyance for commission of any offence under the Act. These terms 'knowingly permitting' raise the perennial problem of 'mens rea', in the form of guilty knowledge is an essential requirement of this particular offence. The difficulty sometimes in interpreting the phrase 'knowingly permit' is no doubt there, but a distinction, though subtle does exist between 'knowingly permitting' goes further and requires proof that the person permitting use of his house, room, enclosure, animal or conveyance, was aware of the fact that such place or conveyance was intended to be used for commission of an offence under the Act. The insertion of the extra word 'knowingly', it must be presumed, has been intentionally used by the legislature and is not redundant; although there are few English authorities holding the view that they are mere technical terms. Suffice it to note that Morkby in his Elements of Law (1905 page 323) gives a list of adverbs which he came accross in codes and other legislative provisions, they include the following:
'Fraudulently, dishonestly, maliciously, knowingly intentionally, wantonly, malignantly, rashly, negligently, wilfully, wickedly, imprudently, wrongfully, unlawfully, illegaly, unjustly. The learned author expresses the doubtful comment that most of these epithets originated with the judges.'
(quoted from Mens Rea in Statutory Offences by J.L.L.J. Edwards published by Macmillan & Co. Ltd. London) Edn. 1955).
38. The insertion of the crucial word 'knowingly' permits' in a new enacted law (Narcotic Drugs and Psychotropic Substances Act, 1985) is evidently with a view to avoid construing nebulously worded statutory offences. The use of the word 'knowingly' in statutory offence is valuable in the sense that it reflects the legislative intent and insistance for 'mens rea' as an ingredient of the offence. It is a well established principle of interpretation that penal enactments must be construed strictly. The classic exposition as to mens rea in statutory offence, was made as back as 1895 in Sherras v. De Rutzen (1895) IQB 918 by Wright J. :
'There is a presumption that 'mens rea' an evil intention, or a knowledge of the wrong-fullness of the act is an essential ingredient in every offence, but that presumption is liable to be displayed either by the words of the statute creating the offence or by the subject matter with which it deals and both must be considered.'
The principal classes of exceptions wherein mens rea is not an essential ingredient, are acts not criminal in the real sense but prohibited in public interest, and made penal.
39. Shri Khan, learned counsel for the respondent invited attention to Section 35 of the Act and submitted, that considering the object of the Act, the necessity of mens rea must be dispensed with.
40. The point raised by the learned counsel deserves consideration and will be presently dealt with, but it must be borne in mind that unless a statute either clearly or by necessary implication rules out a mens rea or a constituent part of crime the Court should not find a man guilty of an offence unless he has a guilty mind. The basic principle of criminal liability should not be allowed to be over shadowed while considering the object of the Act and the legislative intent behind it.
41. Adverting now to the point raised by Shri Khan, Section 35 of the Act provides as follows--
'Section 35 of the Act provides presumption of culpable mental state.
42. Shri Joshi, learned counsel appearing for the appellant however, placing reliance on the Supreme Court decision as reported in State of Maharashtra v. Jayantilal AIR 1984 SC 612: (1984 Cri LJ 334) submitted that this presumption is not available to the prosecution. A similar presumption with regard to an offence Under Section 21 of the Forward Contracts (Regulation) Act, 1952 has been introduced in Section 22 of the said Act. The Supreme Court dealing with this provision in the aforesaid case has observed as follows (Para 6):
'Ordinarily, in a criminal prosecution the burden to prove the charge is on the prosecutor. A special rule of evidence has been provided by raising of a presumption as a result of which the burden which ordinarily lay on the prosecution has been shifted to the defence. The manner in which the two new provisions have come into the Act, the placement of the two provisions, reference to books of account and documents seized from any place Under Section. 22A (1) which are words used in Section 22A (1) and the fact that Parliament has prescribed a special procedure of authorisation by a magistrate and has. prescribed special credence to be given to these documents seized pursuant to the particular procedure prescribed, lead us to hold that the benefit of Section 22B of the Act is confined to books of account and documents which have been seized pursuant to a warrant authorising a police officer not below the rank of a sub-inspector, the place to be searched was required to be specified in warrant, magisterial control was prescribed over the investigation and when these conditions were satisfied, the special rule of evidence became applicable.'
The Supreme Court has further observed as (Para 7) --
'But since a special procedure has been indicated in Section 22A and Section 22B. has provided the special mode of evidence, we agree with the view of the Full Bench that in order to have the benefit of Section 22B of the Act, the prosecution must have carried on the search and seizure of the books of account and documents in the manner prescribed under Section 22A(1) of the Act. Unless the special procedure has been followed, the special rule of evidence under Section 22B of the Act would not be attracted.'
and ultimate conclusion is to be found in the following words (para 8) --
'When investigation has been carried under the Code without the aid of Section 22A of the Act, the presumption would not arise and the prosecution will have to prove the documents according to the ordinary rule of evidence.'
43. The Supreme Court in Inder Sain v. State of Punjab AIR 1973 SC 2309: (1973 Cri LJ 1537) had occasion to deal with the presumption arrising Under Section 10 of the Opium Act 1878, discussing the case law on the point the Supreme Court observed as follows (para 17):
'In other words, when once it is proved in a prosecution under Section 9 of the Act that the accused was in physical custody of opium, it is for the accused to prove satisfactorily that he has not committed an offence by showing that he was not knowingly in possession of opium. It would, therefore appear that the prosecution need only show that the accused was directly concerned in the dealing with opium. If the prosecution shows that accused had physical custody of opium, then, unless the accused proves by preponderance of probability that he was not in conscious possession of the article the presumption Under Section 10 would arise.'
It is not the prosecution case that appellant Dinesh was in possession of opium. The charge against him is about 'knowingly permitting' his conveyance to be used for transporting the opium and this has to be seen in the context that two of the inmates of the car have been very conveniently allowed, to escape.
44. The learned Judge to the trial Court has recorded conviction against the appellant Dinesh mainly on the ground that he has not explained in his statements recorded under Section 313 Cr. P.C., as to how the car of which he was the registered owner, was found to be carrying opium. Learned Judge, contrary to law, has made use of the report Ex. D.1, lodged by Basantilal against co-accused Kalekhan. Going through this report, it is clear that the learned Judge cursorily rejected the same so far as appellant Dinesh is concerned on the ground that it was subsequent in point of time. A mere reading of the report would go to show that the delay in lodging the report stands amply explained.
45. For the foregoing reasons the presumption Under Section 35 of the Act is not attracted in case of the appellant Dinesh.
46. Shri Trivedi, learned counsel who appeared on behalf of the Legal Aid Committee, for appellant Kalekhan, deserves a word of appreciation for the able assistance rendered by him in this appeal.
47. For the foregoing reasons these appeals deserve to be allowed. They are accordingly allowed. Convictions and sentence as recorded against appellant are set aside. They are acquitted of the charges framed against them. Fine if paid, be refunded to the appellants. Appellant Kalekhan be set at liberty forthwith. Appellant Dinesh is discharged of his bail bonds. Orders on I.A. 558/88 for disposal of property, filed in Cr. A. No. 201/88, are being passed separately.