A.S. Anand, C.J.,; R.C. Lahoti and; Ashok Bhan, JJ.
1. This appeal by special leave assails the judgment and order of the High Court of Madhya Pradesh (Indore Bench) dated 23-6-1999 vide which conviction and sentence of the appellant, for an offence under Sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) as recorded by the trial court, was upheld. According to the prosecution case, on 13-1-1988, on receipt of secret information by Bherusingh Malviya, PW 5, Station Officer of Police Station Malhargarh to the effect that certain persons could be processing opium in the jungle between Villages Palewana, Mundedi and Bhuki, PW 5 reportedly recorded that information in the roznamcha, Ext. P-7. He, along with other police staff after associating public witnesses, proceeded towards the jungle and reached there at about 4.35 a.m. It was found that two persons were moving about in suspicious conditions and were carrying some articles with them. On seeing the police party, both tried to run away. They were chased for a distance of about 1 to 1 1/2 km and were found hiding themselves behind a heap of kadvi. The police party, on searching the kadvi, recovered from that heap, a polythene bag allegedly containing about 1.300 kg of opium besides 3 iron kadas and certain other articles like kurchas, sigdi, gunny bag, empty tins of dalda etc. Two of the iron kadas were having opium stuck on them and on scraping, 250 grams of opium was recovered. On the basis of this recovery, a first information report was lodged on 14-1-1988. The recovered articles were seized and later on samples of 30 grams each were sent to Government Opium and Alkaloid Factory, Neemuch for testing, where it was found that sample taken out of the contents of the plastic bag, weighing 1.300 kg, did not match to the description of opium. However, the sample, out of 250 gm, scraping of kadas, was opined to be “qualitatively”
opium. After receipt of the test report, the appellant and one Prabhu were sent up for trial. After recording evidence of five witnesses, examined by the prosecution, the appellant was convicted for an offence under Sections 8/18 of the NDPS Act and sentenced to undergo 10 years' RI. No fine was, however, imposed. Accused Prabhu, was acquitted of all the charges. Aggrieved by the judgment and order of the trial court dated 6-12-1988, the appellant filed an appeal in the High Court, which was dismissed on 23-6-1999. The appellant or his counsel were not present before the High Court at the time of hearing of the appeal which had been listed on several occasions and every time the counsel as well as the appellant did not appear before the High Court. The High Court, under these circumstances, proceeded to dispose of the appeal on perusal of record and appreciation of evidence with the assistance of the Public Prosecutor only. The High Court, agreeing with the appreciation of evidence, as recorded by the trial court, upheld the conviction and sentence of the appellant. Hence, this appeal by special leave.
2. Mr Saxena, learned counsel for the appellant raised a number of pleas in support of this appeal. We, however, need not detain ourselves to deal with all those contentions, as in our opinion, the prosecution has failed to establish conscious possession of contraband, insofar as the appellant is concerned. The trial court, while dealing with the question of conscious possession of the contraband observed as under:
“Though there is no convincing evidence that the accused persons or any one of them put any article in the heap of kadvi, but it is material to note that the heap of kadvi stood on the medh or boundary of agricultural fields Survey Nos. 1511 and 1517. As per the testimony of the Village Patwari Mangilal (PW 3), Survey No. 1511 belongs to accused Gopal, whereas Survey No. 1517 belongs to Pannalal, S/o Nathu Chamar. Pannalal happens to be the father of accused Prabhu. The testimony of Mangilal finds support from the trace settlement map (Ext. P-3) and copy of khasra panchsala (Ext. P-5) amply supports the testimony of Patwari Mangilal that Survey No. 1511 belongs to accused Gopal and Survey No. 1517 belongs to Pannalal.”
3. The High Court did not deal with this aspect in any detail but agreed with the trial court. The approach adopted by the trial court does not appeal to us.
4. The trial court is right in its assessment that “there is no convincing evidence that the accused persons or any one of them put any article in the heap of kadvi” but its finding that the appellant had conscious possession of the contraband suffers from serious infirmities and flaws.
5. According to the prosecution, contraband was recovered from a heap of kadvi, which was lying on the boundary of agricultural fields of Survey Nos. 1511 and 1517, one belonging to the appellant Gopal while the other belonging to Panna Lal, father of acquitted accused Prabhu. There is no evidence on the record to show as to who had placed the kadvi on the boundary of the two fields. After having given benefit of doubt to co-accused Prabhu, against whose acquittal the State did not file any appeal, it was not open to the trial court to have surmised that the contraband was in conscious possession of the appellant. Prosecution has relied upon the revenue record in support of its findings.
6. PW 3 Mangilal, Patwari of Halka, who proved the revenue record stated that so far as the land under Survey No. 1511 is concerned, the same stands in the name of the appellant, while the land under Survey No. 1517/4 stands in the name of Panna Lal, father of Prabhu, the co-accused. He went on to admit during cross-examination that though ownership of two survey numbers is recorded in the revenue record as stated by the prosecution, actual possession of either of the fields has not been mentioned in the records to be with either of them. In the face of this evidence, it is not possible to hold that the appellant could be said to be in conscious possession of the contraband. Both the courts below have allowed surmises and conjectures to take the place of proof. That cannot be done. The possibility that the appellant has been roped in due to misguided suspicion cannot be ruled out. That being the position, the appellant is entitled to benefit of doubt and accordingly we grant that to him. Consequently, we allow this appeal and set aside the conviction and sentence of the appellant.
7. The appellant is in custody. He shall be released forthwith, if not required in any other case.