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At the time of arguments, learned counsel for the appellants argued that case of the prosecution is doubtful. When the Crl. Appeal No.S-1121-SB of 2010 and connected appeal -6- police party stopped the vehicle of the appellants, the appellants were having sufficient opportunity to run away on foot. He further argued that defence version is more probable and false case has been planted upon the accused-appellants. A plea in this regard has been taken in the statement under Section 313 Cr.P.C. and it has also been put to the witnesses by way of suggestions. Learned counsel for the appellants next contended that compliance of Section 50 the NDPS Act has not been made. A common notice was given and the Gazetted Officer also did not give the option to the accused- appellants. Learned counsel for the appellants further argued that no independent witness was joined. Even, no person from the nearby dhani from where PWs stated that cot was brought, has been joined. He further contended that even driver of the BDPO has not been joined in the present case. He next argued that presence of BDPO is doubtful on the spot as he has not used his seal and seal of ASI Ram Mehar has been used, which shows that BDPO was not present on the spot. Learned counsel for the appellants further contended that conscious possession of the accused-appellants has not been proved. He next argued that site plan of the place where naka was held was not prepared. He further argued that as per prosecution version, the vehicle hit the drums but the vehicle was not mechanically examined, which fact also creates doubt in the prosecution version. Learned counsel for the appellants, therefore, argued that there being merit in both the appeals, the same should be allowed and appellants should be acquitted.

As regarding conscious possession, I find that prosecution has duly proved that recovery has been effected from the rear portion of the vehicle in which both the appellants were travelling and were sitting in the rear portion. The prosecution is only to prove the physical possession and it is for the appellants to explain that they were not in conscious possession but there is nothing in the evidence Crl. Appeal No.S-1121-SB of 2010 and connected appeal -12- on record to show any explanation of the appellants. Both the appellants as per statement were working with Baljeet Singh and known to each other. The Hon'ble Supreme Court in Megh Singh Vs. State of Punjab 2003(4) R.C.R. (Criminal) 319, has held that word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. Expression 'possession' is a polymorphous term which assumes different colours in different contexts. It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes. In that case, accused was found sitting on gunny bags containing contraband and it was held that accused was in conscious possession. The Hon'ble Supreme Court in Madan Lal and another Vs. State of Himachal Pradesh 2003(4) RCR (Crl.) 100, has held as under:-

21. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in chapter IV of the Act which relates to offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.
22. It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.
27. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."