JUDGMENT Virender Singh, J. - By this Judgment, I shall be disposing of two appeals i.e. Criminal Appeal No. 150-SB of 1990 Gurdip Singh v. State of Punjab and Criminal Appeal No. 159-SB of 1990 Mohammad Ahmed v. State of Punjab, as both are arising out of one and the same impugned judgment of learned Additional Sessions Judge, Ludhiana dated 3.5.2003. 2. Both the appellants have been convicted under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred as the Act) and have been sentenced to undergo RI for ten years and to pay a fine of Rs. 1 lac, in default of payment of fine to further undergo RI for three years each. 3. The prosecution case in short is that on 12.3.1989 at about 5.45 PM, PW3 Inspector Rupinder Singh SHO of police station Sadar Khanna was present at Alour Chowk alongwith ASI Sukhev Singh, PW5, Head Constable Gurinder Singh and Constable Gurdip Singh etc. when he received secret information through a reliable informant that Mohammed Ahmed of village Hussainpur District Kapurthala appellant in Criminal Appeal No. 159-SB of 1990 and Gurdip Singh of village Ucha District Kapurthala appellant in Criminal Appeal No. 150-SB of 1990 were carrying large quantity of poppy husk in their tempo No. PCJ 8485 make DCM Toyata and that the said contraband could be recovered if a raid was conducted. On the receipt of secret information a ruqa Ex. PC was sent to police station Sadar Khanna for the registration of formal FIR and consequently formal FIR Ex. PC/1 was registered in police station Saddar Khanna under section 15 of the Act. Satnam Singh also happened to be there when the secret information was received and he was also associated. Immediately thereafter Inspector Rupinder Singh alongwith his other officials went towards the place of recovery in their government jeep No. PAV 7858. The police reached the culvert of village Alipur and found the above said tempo No. PCJ 8485 standing there. Its front glass window was lying broken. Both the appellants were allegedly sitting in the tempo. Gurdip Singh appellant was found sitting on the driver seat while Mohammad Ahmed appellant was found sitting with the driver on the adjacent seat. The tempo was loaded with 30 gunny bags. Its front glass window was lying broken. Both the appellants were allegedly sitting in the tempo. Gurdip Singh appellant was found sitting on the driver seat while Mohammad Ahmed appellant was found sitting with the driver on the adjacent seat. The tempo was loaded with 30 gunny bags. Constable Gurmej Singh was sent to find out about the availability of some gazetted officer at Khanna and he came back after some time and reported that no gazetted officer was available. Even DSP was also away. Thereafter Inspector Rupinder Singh got the contents of 30 gunny bags spread on a tarpaulin (a big sheet). Out of the recovered poppy husk 500 grams was taken out as sample and the rest of the poppy husk was transferred into 30 gunny bags. Contents of 29 bags weighed 35 Kgs each whereas contents of 30th bag weighed 34 Kgs 500 grams of poppy husk. Gunny bags are exhibited as Ex. P1 to P30 during the trial. All the other legal formalities were done by Inspector Rupinder Singh at the spot. The tempo and the contraband were then taken into possession vide Ex. PD attested by ASI Sukhdev Singh and Satnam Singh PWs. Jamatalashi of both the appellants was conducted at the spot and some amount was recovered from their pockets. It was also taken through recovery memos. Site plan Ex. PC was also prepared at the spot. On return, the case property (contraband) was deposited with MHC Gurbachan Singh (who has been examined as PW1 and he has tendered formal affidavit Ex.PA). The sample which was sent to the Chemical Examiner for examination intimated that the contents contain poppy husk. Report is Ex. PH. 4. After investigation both the appellants were challaned. They were charged under section 15 of the Act. 5. The prosecution has examined the report of Chemical Examiner. The case of the prosecution is mainly hinging upon the statement of Inspector Rupinder Singh PW3 and statement of Sukhdev PW5 who are the witnesses of the recovery. Satnam Singh PW was, however, given up by the prosecution as being won over by the appellants. 6. After appreciating the entire evidence, the trial court convicted and sentenced both the appellants as indicated above. Hence, this appeal. 7. I have heard Mr. Baldev Singh, Senior Advocate for Gurdip Singh appellant and Mr. K.K. Aggarwal, Senior Advocate for Mohammad Ahmed appellant. 6. After appreciating the entire evidence, the trial court convicted and sentenced both the appellants as indicated above. Hence, this appeal. 7. I have heard Mr. Baldev Singh, Senior Advocate for Gurdip Singh appellant and Mr. K.K. Aggarwal, Senior Advocate for Mohammad Ahmed appellant. With their assistance, I have gone through the entire record. 8. Mr. Baldev Singh appearing for Gurdip Singh appellant has argued with full vehemence that the prosecution has not been able to prove its case against the present appellant who was allegedly the driver of vehicle No. PCJ 8485 carrying poppy husk. Strengthening his arguments the learned counsel further contended that no evidence was collected by the prosecution agency in this case to show the nexus of present appellant with the alleged contraband except that he is found to be the driver of the tempo. It is then contended that even in the statement of the present appellant recorded under section 313 Criminal Procedure Code no incriminating evidence was put to him in order to show his culpability. Stretching the arguments further the learned counsel contended that Gurdip Singh driver has not been charged alternatively for transporting the offensive goods without permit or authorization as required by law and once other charge under section 15 of the Act is not proved by the prosecution, the appellant deserves acquittal. In support of his arguments, the learned counsel relied upon a judgment of Apex Court rendered in Avtar Singh v. State of Punjab, 2002(4) RCR(Crl.) 180 (SC). 9. Mr. K.K. Aggarwal, arguing for Mohammad Ahmed has also made his submissions on the point of conscious possession and contended that qua the present appellant also the prosecution has not been able to prove to the hilt of conscious possession of the alleged recovery. He then contended that may be that the present appellant was found sitting by the side of Gurdip Singh, it cannot be said that he had any knowledge about the poppy husk being carried in the said tempo much less the conscious possession and as such the present appellant cannot even be remotely connected for the charge framed against him. The learned counsel contends that when the bail application was moved before the concerned Court, Mohammad Ahmed appellant was shown to be driver of the tempo whereas Gurdip Singh was shown sitting with him whereas now the stand of the prosecution is otherwise. The learned counsel contends that when the bail application was moved before the concerned Court, Mohammad Ahmed appellant was shown to be driver of the tempo whereas Gurdip Singh was shown sitting with him whereas now the stand of the prosecution is otherwise. According to the learned counsel this is a material contradiction which goes to the core the case. Mr. Aggarwal also relies upon Avtar Singhs case (supra) in support of his submissions and prays for acquittal. 10. Refuting the arguments advanced by both the counsel, Mr. Hooda contends that in the present case as per the information both the appellants were carrying huge quantity of contraband in their tempo and as such they have no escape. The learned State counsel further submits that in the present case all the legal formalities under the Act have been followed strictly in order to bring home guilt to both the appellants and as such the conviction as recorded by the trial court deserves to be confirmed. 11. After hearing the rival contentions of both the sides, I am of the view that appeal filed by Gurdip Singh appellant succeeds and the appeal filed by Mohammad Ahmed is liable to be dismissed. 12. Before I enter into detailed discussion for arriving at the said conclusion, I would like to show my displeasure on the investigation done by SI Rupinder Singh inspite of the fact that huge quantity of contraband (30 bags of poppy husk) were allegedly recovered in this case. 13. So far as Gurdip Singh appellant is concerned, there is no evidence worth the name with the prosecution agency to establish his conscious possession qua the contraband to the hilt. The case of the prosecution as set up is that when the tempo was seen standing at a particular place (culvert of village Alipur) Gurdip Singh appellant was sitting on the steering of the tempo whereas Mohammed Ahmed was sitting on his right side and both were allegedly apprehended at the spot. The prosecution agency has not even bothered to collect the evidence to the effect that as to whether Gurdip Singh appellant was employed as driver of the said tempo or not in so much so even the licence of Gurdip Singh has not been taken in possession. Mohammad Ahmed and Gurdip Singh are from two different places. The prosecution agency has not even bothered to collect the evidence to the effect that as to whether Gurdip Singh appellant was employed as driver of the said tempo or not in so much so even the licence of Gurdip Singh has not been taken in possession. Mohammad Ahmed and Gurdip Singh are from two different places. There is every possibility that he might have been engaged by Mohammed for that day only. Possession is the core ingredient to be established before the accused in the instant case is punished under section 15 of the Act. If the accused is found to be in possession of the narcotic item within the meaning of this Act, this is for him to account for such possession satisfactorily and if he is not in a position to give a satisfactory explanation the presumption under section 54 of the Act would come into play. But the prosecution has to prove satisfactorily the fact that the accused in fact, is in the possession of the contraband. 14. In the present case, I am of the considered view that the prosecution has not discharged its function qua Gurdip Singh according to the Act and therefore, no presumption can be drawn against him. Even in the statement recorded under section 313 Criminal Procedure Code, no question was put to Gurdip Singh appellant that he was found in possession poppy husk in the tempo. A vague question has been put to both the appellants that secret information was received by Inspector Rupinder Singh to the effect that both the appellants were carrying poppy husk in the tempo and there after ruqa was sent for the registration of the formal FIR. So far as the Gurdip Singh appellant is concerned, no alternative charge has been framed against him for transporting the offensive goods without any permit or authorisation as required by law. The only charge framed against him is of section 15 of the Act. The judgment rendered in Avtar Singhs case (supra), thus, squarely covers the case of Gurdip Singh appellant and entitles him to acquittal. Ordered accordingly. 15. I shall now switch over to the case of Mohammad Ahmed appellant. His case can be comfortably segregated from his co-convict Gurdip Singh who stands acquitted. I have very minutely seen Ex. PD, the recovery memo of tempo No. PCJ 8485. Ordered accordingly. 15. I shall now switch over to the case of Mohammad Ahmed appellant. His case can be comfortably segregated from his co-convict Gurdip Singh who stands acquitted. I have very minutely seen Ex. PD, the recovery memo of tempo No. PCJ 8485. This recovery memo is prepared by SI Rupinder Singh PW3 and attested by ASI Sukhdev Singh PW5 and Satnam Singh (not examined). The said recovery memo shows that alongwith tempo DCM Toyata, permit has also been taken into possession. The said permit now forms part of the judicial file. It is issued by Government of Punjab in the name of Mohammad Ahmed son of Ismail (present appellant). The address at the time of issuance of the permit was 162, Model Town, Jalandhar whereas the present address is village Hussainpur District Kapurthala. This permit relates to tempo No. PCJ-8485 involved in this case. Thus, there cannot be any dispute regarding identity of Mohammed Ahmed the appellant herein. He even does not disown the ownership of the said tempo. The defence taken up by the present appellant is that he was suspected as terrorist prior to the date of alleged recovery and he alongwith his tempo was retained in the police station by the police and was involved in this case subsequently. This defence is neither here nor there being a bald defence. 16. In my view the prosecution has been able to prove the conscious possession of the narcotic item in this case so far as Mohammad Ahmed appellant is concerned. As stated above, the Investigating Officer, SI Rupinder Singh has not made further efforts to dive deep into the investigation in this case but so far as the present appellant is concerned he has no escape at all. As the tempo belongs to this present appellant and 30 bags of poppy husk were recovered from his tempo, in my view the prosecution has been able to prove satisfactorily the fact that the present appellant was in possession of 30 bags of poppy husk. He has failed to account for such possession satisfactorily and as such presumption under section 54 of the Act has to be drawn against him. Avtar Singhs case (supra) in my view, would not render any help to the contention raised by Mr. Aggarwal as the case of Mohammed Ahmed is entirely distinguishable from his co-convict Gurdip Singh on facts. He has failed to account for such possession satisfactorily and as such presumption under section 54 of the Act has to be drawn against him. Avtar Singhs case (supra) in my view, would not render any help to the contention raised by Mr. Aggarwal as the case of Mohammed Ahmed is entirely distinguishable from his co-convict Gurdip Singh on facts. The appeal filed by Mohammed Ahmed, thus, fails. 17. The net result is that appeal No. 150-SB of 1990 filed by Gurdip Singh appellant is hereby allowed. He is acquitted of the charge framed against him whereas appeal No. 159-SB of 1990 filed by Mohammed Ahmed appellant is hereby dismissed. Gurdip Singh appellant is hereby discharged of his surety bond furnished by him during the pendency of the present appeal. 18. Intimation of this judgment be sent to the concerned court and other quarters at once so that necessary steps can be initiated immediately to take Mohammed Ahmed in custody to serve out his remaining part of substantive sentence. The tempo No. PCJ 8485 if already not in custody shall now be taken in possession by the concerned police at once as it belongs to Mohammed Ahmed whose appeal stands dismissed. Both the appeals are, thus, being disposed of. Appeal allowed.