D. P. BUCH, J. ( 1 ) THIS is an appeal under Sub-section 2 of Section 374 of the Code of Criminal Procedure Code, 1973 (for short "the Code") in order to challenge the judgment and conviction order dated 30. 01. 2003 recorded by the learned Additional Sessions Judge, (Fast Track Court), Palanpur in Special Case no. 58 of 2001 under which the Trial Court convicted the present appellant as well as the co-accused for the offence punishable under Section 18 read with Section 13 of the Narcotic Drugs and Psychotropic Substance Act, 1985 and sentenced the present appellant to suffer R. I. For three years. The present appellant was further directed to pay fine of Rs. 10,000=00 and in default of payment of fine, the present appellant was also directed to undergo further R. I. for six months. ( 2 ) THE facts of the case of the prosecution against the present appellant before the trial Court may be briefly stated as follows :-2. 1. AS per the case of the prosecution, on 25. 2. 2001, after about 4:45 p. m. Dy. S. P. Mr. Chauhan P. W. 2 at Exh. 23 alongwith other Police Officers were on patrolling duty near village Miyal. Mr. Thakore P. S. I. of Tharad Police Station alongwith his staff was also present there as they all were also on patrolling duty. At about 5:45 p. m. a motor vehicle bearing number RJ 16 C 1040 which was written in hindi language was found coming from village Vatdau. The driver of the said vehicle was required to stop the vehicle and a signal was also given to him. But he did not stop the vehicle and drove his vehicle towards village Kharakhoda. In the said vehicle two persons were sitting. One was driving and one was sitting by his side. The person driving the said vehicle is incidentally the appellant in the present case. The co-accused being accused no. 1 in the special case has also been simultaneously convicted and sentence to jail. It appears that he has not preferred appeal against his conviction, therefore we are having appeal filed by the appellant who happened to be accused no. 2 in the said special case. It is also the case of the prosecution that the said two persons and the vehicle both were found to be doubtful and, therefore, Mr. It appears that he has not preferred appeal against his conviction, therefore we are having appeal filed by the appellant who happened to be accused no. 2 in the said special case. It is also the case of the prosecution that the said two persons and the vehicle both were found to be doubtful and, therefore, Mr. Chauhan as well as Mr. Thakore both chased the said vehicle. Even siren of the vehicle was also used. After crossing a distance of about 7 kms. , the vehicle of P. S. I. Mr. Thakore overtook the on going vehicle driven by the appellant and he, therefore, required the appellant to stop his vehicle. The appellant, in turn, stopped the vehicle and both the persons sitting in the said vehicle tried to run away. The police officers and the personnel of both the vehicles cordoned the said vehicle. In the meantime, one another jeep car arrived from village Varahi, which was also stopped and two persons who were sitting in the said vehicle were requested to assist the police as panch witnesses. The aforesaid fact was conveyed to them and thereafter, inquiry was made from the appellant and the co-accused. Their names and addresses were recorded by Mr. Chauhan. The co-accused was required to come out of the vehicle and he actually came out of the vehicle with a cotton bag in his hand. On searching the said cotton bag, opium was found therein. It weighed 1 Kg and 650 gms. Samples were collected and sealed for being sent to the F. S. L. for chemical analysis. Panchnama was drawn to that effect. Thereafter, mudammal - opium, vehicle, the appellant and his co-accused all were taken to the Police Station. F. I. R. was filed and the appellant and co-accused were taken into custody. Investigation was undertaken and at the end of the investigation, chargesheet was filed before the Special Court constituted under the said Act. The learned Judge supplied copies of the police papers to the appellant and the co-accused, charges at Exh. 5 was framed, it was read over and explained to the appellant and the co-accused. They pleaded not guilty and, therefore, evidence was recorded. At the close of the evidence, further statements of the two accused persons were recorded. The learned Judge supplied copies of the police papers to the appellant and the co-accused, charges at Exh. 5 was framed, it was read over and explained to the appellant and the co-accused. They pleaded not guilty and, therefore, evidence was recorded. At the close of the evidence, further statements of the two accused persons were recorded. Arguments were heard and the learned Special Judge found that the two accused persons were guilty for the aforesaid offence. He, therefore, heard both the accused persons on the quantum of punishment and after hearing them, aforesaid punishment was inflicted on the appellant as well as the co-accused. Feeling aggrieved by the said judgment and conviction order of the trial court, the appellant has preferred this appeal before this Court. ( 3 ) IT has been mainly contended before this Court that there was no material before the trial court to hold that the present appellant was in conscious possession of the mudammal - opium and, therefore, the trial court committed serious illegality in convicting the appellant for the aforesaid offence. That therefore, the judgment and order of the trial court are illegal and erroneous and deserve to be set aside. That therefore, the present appeal may be allowed, the judgment and conviction order against the appellant may be set aside and the appellant may be held not guilty and may be acquitted of the aforesaid offence and he may be set at liberty forthwith. 3. 1. ON receiving the appeal it was admitted and since the matter relates to short sentence it seems to have been placed for final hearing. Today, I have heard Mr. Divetia with Mr. Dastoor appearing for the appellant and Mr. S. S. Patel learned A. P. P. appearing for the State. ( 4 ) THE learned advocate appearing for the appellant has taken me through the evidence on record and observations of the trial court arguing that there is no material on record to connect the appellant with the possession of the mudammal - opium. Now so far the evidence on record is concerned by and large it has come on record that Dy. S. P. Mr. Chauhan and P. S. I. Mr. Thakore both were on patrolling duty at the date, time and place of offence. There is no dispute about the same. Now so far the evidence on record is concerned by and large it has come on record that Dy. S. P. Mr. Chauhan and P. S. I. Mr. Thakore both were on patrolling duty at the date, time and place of offence. There is no dispute about the same. It is also in evidence that M/s. Chauhan and Thakore saw a jeep car driven by the appellant and the appellant was required to stop the vehicle. The appellant did not stop the vehicle and drove the vehicle towards Kharakhoda village. At that point of time, the vehicle of Mr. Thakore overtook the vehicle driven by the appellant and, therefore, the vehicle driven by the appellant was made to stop. These facts are also not seriously disputed even before this Court. Then it also comes on record that as soon as the vehicle was stopped by the appellant, the appellant and co-accused both tried to run away but the vehicle was cordoned by the police personnel. There was also no serious dispute with respect to this fact. It has also come in evidence during the cross-examination of Mr. Chauhan that inquiry was made with respect to the names of the appellant and the co-accused. They had given their names and addresses. This fact has also not been disputed before this Court. Mr. Chauhan has also deposed before the trial court that a cotton bag was found lying between the two legs of the co-accused (not being the appellant) under the seat of the said vehicle and the co-accused was required by Mr. Chauhan to get out of the vehicle. The co-accused came out of the vehicle with the said cotton bag in his hand and on looking into the said cotton bag mudammal opium was found therein. This fact has also not been disputed seriously in the evidence that has been given by Mr. Chauhan and even in cross-examination of Mr. Chauhan. This evidence of Mr. Chauhan has remained unshaken to that extent. It has to be accepted that Mr. Chauhan has stood the test of cross-examination. It appears from the record that P. S. I. Mr. Thakore passed away and, therefore, his evidence was not available on the record. Chauhan and even in cross-examination of Mr. Chauhan. This evidence of Mr. Chauhan has remained unshaken to that extent. It has to be accepted that Mr. Chauhan has stood the test of cross-examination. It appears from the record that P. S. I. Mr. Thakore passed away and, therefore, his evidence was not available on the record. But the fact remains that mudammal - opium was seized from the cotton bag which was found between the two legs of the co-accused under the seat of the vehicle in which the co-accused was sitting by the side of the appellant who was driving the vehicle at the relevant point of time. ( 5 ) ON the aforesaid admitted facts, the learned advocate for the appellant has heavily argued that at the best it can be said that mudammal - opium was seized from the co-accused and not from the present appellant. He has also argued that the appellant was not found to be in possession of the said opium and he would not be treated to be the person found to be in conscious possession. That therefore, even if it is taken that mudammal - opium was seized from the co-accused and even if we take it that the co-accused could be convicted on the evidence on record, there was no evidence on record to connect the present appellant with the possession of the said opium and since the appellant was not proved to be in possession of the said opium, he could not be convicted for illegal possession of the said opium contrary to the said act. That therefore, the judgment of the trial court is incorrect and the finding recorded by the trial court that the appellant was also in possession of the said opium is a finding on record without any evidence or material. That therefore, the said finding is contrary to the evidence on record, hence it is required to be set aside. It has been also argued that if the said finding is set aside, then it cannot be said that the appellant was proved to be in possession of the said opium and, therefore, there being no further evidence, the said offence could not have been committed by the appellant and the appeal, is required to be allowed and the conviction is required to be set aside against the present appellant. ( 6 ) NOW so far the evidence on record is concerned, it is not much in dispute that opium was found from the cotton bag which was lying between two legs of the co-accused under the seat on which the co-accused was sitting. For this purpose, there is the evidence of Mr. Chauhan and his evidence is supported by the panchnama and his own F. I. R. It is true that the panch witnesses have not wholeheartedly supported the case of the prosecution with respect to the aforesaid recovery of the mudammal - opium. However, looking to the quantum of mudammal - opium and looking to the fact that the mudammal was seized by a senior police officer like Dy. S. P. , I am of the view that the trial court was not unjustified in depending upon the evidence of Mr. Chauhan, Dy. S. P. who had categorically deposed before the trial court to the effect that the said mudammal - opium was seized from the cotton bag lying with the co-accused as discussed in details hereinabove. ( 7 ) THE learned advocate for the appellant has drawn my attention to the panchnama recorded by Mr. Chauhan and produced at Exh. 24 at page 71 which also shows that the aforesaid opium was recovered from the cotton bag which way lying between the two legs of the co-accused under the seat on which he was sitting. Even F. I. R. also shows the same thing. There is no serious dispute about the same. The co-accused has been convicted and he has not preferred the appeal. Thus, there is no dispute about the same also. ( 8 ) A question has therefore arisen as to whether in the aforesaid situation, it can be said that the mudammal - opium was seized from the possession of both the accused persons and as to whether the present appellant can be said to be in possession of the said opium. It is required to be considered here that both the appellants have been coming from Rajasthan State. There is no dispute about the same. Both were travelling in the said jeep car which was driven by the appellant and the co-accused was sitting by the side of the appellant. As per the case of Mr. Chauhan, when the vehicle was required to be stopped under the signal of Mr. Chauhan and Mr. There is no dispute about the same. Both were travelling in the said jeep car which was driven by the appellant and the co-accused was sitting by the side of the appellant. As per the case of Mr. Chauhan, when the vehicle was required to be stopped under the signal of Mr. Chauhan and Mr. Thakore, the vehicle was not stopped. Since the vehicle was driven by the appellant, it was the function and duty of the appellant to stop the vehicle. He had not stopped the vehicle despite the signal of Mr. Chauhan and Mr. Thakore. This fact has not been challenged during the lengthy cross-examination of Mr. Chauhan Therefore, when this aspect of the case deposed by Mr. Chauhan has been supported by the evidence of the F. I. R. of this witness, the trial court was justified in accepting this evidence. This would mean that the trial court was justified in holding that the appellant did not stop his vehicle despite the signal given to him by Mr. Chauhan and Mr. Thakore. On a query, the learned advocate for the appellant has argued that sometimes people are afraid of police and, therefore, they might not stop the vehicle on a signal given by the police to the motor vehicle driver. There is no reason to accept the said argument advanced by the learned advocate for the appellant, since the appellant or his co-accused did not explain the said position during the course of their statements recorded under Section 313 of the said Code. No such suggestion was made to Mr. Chauhan during the course of his cross-examination. Therefore, when it has not been brought on the record that the appellant did not stop the vehicle out of fear of police, it would not be possible for this Court hearing this appeal from the judgment and conviction that the appellant did not stop the said vehicle on account of some sort of fear of police. ( 9 ) ON the other hand, the conduct of the appellant in the driving away the vehicle towards the kharakhoda village clearly indicates that there was apprehension in the mind of the appellant that if he would stop the vehicle and if the vehicle would be checked, then mudammal - opium would be seized by the police and, therefore, he would be in trouble. This would be a reasonable inference from the aforesaid conduct of the appellant. It is also a matter on record that when the vehicle of P. S. I. Mr. Thakore overtook the vehicle of the appellant and required the vehicle of the appellant to stop then, the vehicle of the appellant was made to stop and there also the appellant and the co-accused both tried to run away. This has come from the evidence of Mr. Chauhan at Exh. 23 P. W. 7. Despite lengthy cross-examination of this witness, it is noticed that the aforesaid fact has not been challenged during the course of the lengthy cross-examination of this witness. If the co-accused was only the person in possession of the mudammal - opium then the appellant would not have naturally tried to run away in order to see that he does not fall in the trap of the police. Further the appellant had absolutely no reason to make an effort to run away from the place if he was not in conscious possession of the mudammal opium on the spot. If he did not know that the co-accused was having a cotton bag with him and the cotton bag contained mudammal - opium, then he had absolutely no reason to run away from the spot. His conduct to run away from the said place alongwith the co-accused indicates that he had a knowledge about the fact that the said cotton bag contained mudammal - opium. Again this aspect has not been challenged during the course of the cross-examination of Mr. Chauhan. The appellant had an opportunity to explain this position during the course of his statement recorded under Section 313 of the said Code. There, the appellant has not stated anything about the same in the said statement. ( 10 ) THEN it is not much in dispute that 1 Kg and 650 gms. of opium was found from the said cotton bag. The learned advocate for the appellant argued that since the cotton bag was found with the co-accused, the appellant would not be said to be in possession thereof and, therefore, according to this argument, the appellant could not be convicted for the offence of possessing the said opium contrary to the said Act. An attempt was also made to argue that Mr. An attempt was also made to argue that Mr. Chauhan did not inquire from the appellant as to why he went away with his vehicle without stopping it as per the signal of Mr. Chauhan. The witness has deposed that he did not remember as to whether he inquired about the same from the present appellant. The fact remains that the appellant has never explained the said position during the course of his statement under Section 313 of the said Code. An attempt was also made to bring it on record that about 10 to 15 persons were also sitting and travelling in the said vehicle and they had run away on seeing the police. Mr. Chauhan has negatived the said suggestion. There is no further evidence on record to show that 10 to 15 persons were also travelling in the said vehicle. Incidentally, even the appellant has not stated during the course of his statement under Section 313 of the said Code that 10 to 15 persons other persons were also sitting in his vehicle. Further it appears, that the appellant as well as the co-accused had submitted joint written statement before the trial court at Exh. 47 at page 111 stating that at the time of the incident 10 to 15 persons were sitting in the said vehicle. There their case was that when the police stopped the vehicle those 10 to 15 persons were allowed to get down, that in the front seat 5 persons were sitting and they were also allowed to get down. That mudammal opium did not belong to the two accused persons and the two persons were not concerned with the said mudammal. That the two accused persons apprehended that the police would still file non-cognizable complaint against them. The said written statement appears to have been received by the trial court on 23. 10. 2003. ( 11 ) FURTHER as said above, the allegation has not been supported by the evidence of Mr. Chauhan. During the course of the evidence of Mr. Chauhan also it has not been brought out that there were 10 to 15 persons and rest were allowed to go away. Even Mr. Chauhan has also denied the said fact and has also denied that five persons were sitting with the driver in the front seat of the said vehicle. Chauhan. During the course of the evidence of Mr. Chauhan also it has not been brought out that there were 10 to 15 persons and rest were allowed to go away. Even Mr. Chauhan has also denied the said fact and has also denied that five persons were sitting with the driver in the front seat of the said vehicle. Now it is required to be considered that if five persons were actually sitting in the said front seat then Mr. Chauhan or Mr. Thakore had absolutely, no reason to allow other persons to go away and file the F. I. R. against the two persons only. It is more so when the co-accused from whom the cotton bag containing mudammal opium has not filed appeal, therefore it is not possible to observe anything with respect to the conduct of the said co-accused who is not before this Court in this appeal. In other words, the trial court has recorded conviction on the fact that a cotton bag containing mudammal - opium was seized from the said jeep car and at that time the cotton bag was lying between the legs of the co-accused under his seat. Looking to the aforesaid finding recorded by the trial court on the strength of the evidence of Mr. Chauhan, supported by F. I. R. and panchnama and considering the fact that the said co-accused has not preferred an appeal, there is no reason to dislodge the said finding of the trial court. It is more so when Mr. Chauhan and Mr. Thakore had absolutely no axe to grind against the appellant and the co-accused. It is required to be considered that the appellant has not pleaded that Mr. Thakore or Mr. Chauhan had any enmity with him. There is nothing on record to show that the present appellant knew Mr. Thakore or Mr. Chauhan. In that case, Mr. Thakore or Mr. Chauhan had no axe to grudge against the present appellant as well as the co-accused. Therefore, there is no reason to accept that other persons were allowed to go away and only the appellant and the co-accused were alleged to have been found in possession of mudammal - opium. Thakore or Mr. Chauhan. In that case, Mr. Thakore or Mr. Chauhan had no axe to grudge against the present appellant as well as the co-accused. Therefore, there is no reason to accept that other persons were allowed to go away and only the appellant and the co-accused were alleged to have been found in possession of mudammal - opium. In other words the entire theory of presence of 10 to 15 persons in the said vehicle and and of four other persons in the front seat with the driver in the said vehicle are not born out from the record and, therefore, the said theory was not accepted by the trial court. Even I also find that there is no reason to accept the said theory of the present appellant. In other words, it is not acceptable even to this Court that 10 to 15 persons were travelling in the said vehicle at the relevant point of time. ( 12 ) IT is required to be seen that panchas have turned hostile and they have not supported the case of the prosecution. Further it transpires that even from the evidence of those hostile witnesses it does not appear that 10 to 15 persons were found travelling in the said vehicle at the relevant point of time. Anyway, it is not acceptable even to this Court that 10 to 15 persons were travelling in the said vehicle at the relevant point of time. Then it is also required to be considered that both the accused persons did not have any conflict of interest and conflict of defence before the trial court. They both have engaged one and the same advocate who had defended the cause of the appellant as well as of the co-accused. The learned advocate for the appellant had tried to explain that sometime, advocates are engaged at the advice or instruction of some other persons including the persons in jail also. Nevertheless, when the advocate finds that the interest and the defence of two or more accused persons would be conflicting, then in that case no advocate would be ready to work as an advocate for two or more persons. In the present case, we find that one advocate has been engaged by two accused persons before the trial court and both were defended by one advocate. In the present case, we find that one advocate has been engaged by two accused persons before the trial court and both were defended by one advocate. In other words, one advocate had accepted the brief of two accused persons before the trial court. Had there been conflict of interest or conflict of defence between the two then, in that event the said learned advocate would not have been agreeable to defend the cause of both the accused persons. The fact that one advocate has acted as advocate for both the accused persons before the trial court right from the beginning till the pronouncement of the judgment, clearly shows that there was no conflict of interest or conflict of defence between the appellant and the co-accused. This is a significant evidence of conduct on the part of two accused persons. They had a common advocate before the trial court. 12. 1. THE trial court had made certain observations with respect to the provision made in Section 35 and 54 of the said Act in order to record a finding that mudammal opium was found from the possession of the appellant also. The trial court has also referred to the provisions made in Section 35 and 54 of the said Act. It would be useful to refer and reproduce the same for ready reference as follows :- Section 35 : When such an act is criminal by reason of its being done with a criminal knowledge or intention. Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention. Section 54 : Commutation of sentence of death. In every case in which sentence of death shall have been passed the appropriate Government may, without the consent of the offender, commute the punishment for any other punishment provided by this Code. "12. 2. THE aforesaid provisions were considered in certain decisions also and the trial court has referred to those observations at page 139 of the judgment. In the case of Abdul Rasid Ibrahim Mansuri v. State of Gujarat reported in A. I. R. 2000 S. C. 821. "12. 2. THE aforesaid provisions were considered in certain decisions also and the trial court has referred to those observations at page 139 of the judgment. In the case of Abdul Rasid Ibrahim Mansuri v. State of Gujarat reported in A. I. R. 2000 S. C. 821. the Honble Supreme Court has observed, as follows :- "no doubt, when the appellant admitted that narcotic drug was recovered from the gunny bags stacked in the auto-rikshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is denineated in sub-section (2) (of Section 35) as "beyond a reasonable doubt". If the court on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that he had real knowledge of the nature of the substance concealed in the gunny bags then the appellant is not entitled to acquittal. However, if the court entertains strong doubt regarding the accuseds awareness about the nature of the substance in the gunny bags, it would be miscarriage of criminal justice to convict him of the offence keeping such strong doubt dispelled. The burden of proof cast on the accused under Section 35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence. "12. 3. THE trial court has also considered the observations of the Honble High Court of Madhya Pradesh in Mohmed Akhtar v. State of Madhya Pradesh reported in 1999 Cri. L. J. 3779 which may also be reproduced for ready reference as follows :- "in the present case, the two appellants were in the car and the charas was also there. 3. THE trial court has also considered the observations of the Honble High Court of Madhya Pradesh in Mohmed Akhtar v. State of Madhya Pradesh reported in 1999 Cri. L. J. 3779 which may also be reproduced for ready reference as follows :- "in the present case, the two appellants were in the car and the charas was also there. They had the "physical custody" of the contraband. As already stated there is no evidence to the effect that the appellant no. 2 was only a passanger in the car. As per Section 35 of the Act, the burden is upon the accused to prove "beyond reasonable doubt" and not merely by "preponderance of probability" that he was not having knowledge that the contraband article is kept in the car. The absence of mens rea in such cases is to be established by the accused. It may appear somewhat a novel phenomena to the traditional criminal jurisprudence that the burden on the accused to prove a fact is of the degree which is generally laid on prosecution i. e. proof beyond reasonable doubt. But that had been given a statutory recognition. In view of this legal position, it is not enough to suggest in the cross-examination of the prosecution witness that appellant Mohmmad Ali Naved was only a passenger in the car. It was necessary for him to establish this fact beyond reasonable doubt. As already stated there is no evidence on this point and, therefore, it would be presumed that the appellant Mohmmad Ali Naved was also in possession of the charas which is said to have been found in the car. "12. 4. THE trial court has also reproduced the observations of the said High Court in Malek Khan vs. State of Madhya Pradesh reported in 1999 Cri. L. J. 1147 which may also be reproduced for ready reference as follows :- "sub-section (2) of Section 35 provides that "for the purpose of this Section, a fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. " These two sentences have to be understood properly and the intention of the legislature in enacting them has to be understood properly. " These two sentences have to be understood properly and the intention of the legislature in enacting them has to be understood properly. It has been clarified as to what "fact" which has been embodied in explanation to sub-section (1) of Section 35 of the NDPS Act means. It has been further clarified that "fact" is said to be proved only when the Court believes it to exist and that too beyond reasonable doubt. It means that the prosecution is obliged to prove it by cogent, reliable and acceptable evidence that the person alleged to have knowledge of the said fact was having that knowledge and that should be proved beyond reasonable doubt. It means that any other proposition indicating non-existence of knowledge has to be ruled out. That would require a process of adducing evidence, examination of some witnesses, examination of those witnesses and therefore, a process of appreciation of said evidence in coming to the conclusion whether such fact does exist or does not exist and further to the extent whether to the point of preponderance of probability or beyond reasonable doubt. There is lot of difference between "preponderance of probability" and "beyond reasonable doubt". These situations cannot be expected to be near each other or on the approximate distance from each other. It has to cross the stage of "proof". That means it has to be something more than the status of "proved" which has been indicated by the provisions of Section 3 of the Indian Evidence Act. It has to be kept in mind that the legislature used these two terms while indicating the extent of proof which is required. It is always believed that the words which are used by the legislature in enactment are used with the specific intention. Therefore, when these terms have been used in sub-section (2), it means that the legislature wanted to have specific proof for the purpose of "such knowledge" which was necessary for the Court to draw the inference or the conclusion in respect of the existence of culpable mental state. The words "preponderance of probability" have been deliberately used in sub-section (2) because the legislature intends to keep the opportunity open to such a person who is facing such allegation to give acceptable explanation or adduce evidence to disprove that he was having such a culpable state of mind. The words "preponderance of probability" have been deliberately used in sub-section (2) because the legislature intends to keep the opportunity open to such a person who is facing such allegation to give acceptable explanation or adduce evidence to disprove that he was having such a culpable state of mind. Unless, the evidence has been brought on record to that extent, the conclusion cannot be drawn against the person facing such allegation and for that, the prosecution has to collect the material or to adduce evidence to such extent for proving that fact. After that only, person alleged has to produce such material in the Court or adduce evidence which would rebut that presumption. Such presumption which is indicated by the provisions of Section 35 of the NDPS Act is always rebuttable. "12. 5. EVEN the observations of the Honble High Court of Bombay in the case of Mrs. Khan Rukhsena Banoo v. B. S. Rawat, Assistant Collector of Customs, Bombay and Anr. reported in 1994 Cri. L. J. 785 may also be reproduced for ready reference as follows :- "we find that there is a specific statutory presumption in relation to contraband that comes within the ambit of NDPS Act. The law, therefore, makes provision for certain legal presumptions that arise and for good reason, as otherwise, in our consider view, it would be a stereo type defence raised in every case where accused are found in possession of contraband to contend that it was given to her by a third party, that the accused is not concerned with the baggage but is simply an innocent carrer. Experience shows that such statements are made in almost every case. In a large number of instances the racketeers and dealers deliberately pick passengers whom the authorities are least likely to suspect of person who on the face of it may not appear to be regular smugglers and who are carriers for a small consideration. It is for this reason that the law has made specific provisions under which any person found in possession of substances that some within the ambit of the NDPS Act shall be presumed to have knowledge of the nature of the contraband and the law presumes such guilty knowledge. It is for this reason that the law has made specific provisions under which any person found in possession of substances that some within the ambit of the NDPS Act shall be presumed to have knowledge of the nature of the contraband and the law presumes such guilty knowledge. This provision is undoubtedly harsh but it is still very necessary because in the absence of this provision in all such cases, the defence would be that the accused is an innocent carrier and that consequently, the Court should go back to the principle of conscious possession. To our mind, that principle which may apply to any other case would not be applicable in view of the specific provisions of the present Act. "12. 6. THE trial court has observed at page 142 that this High Court has also made appropriate observations in the case of Dashrathbhai Govindbhai Shah v. State of Gujarat reported in 1998 Cri. L. J. 4634. 12. 7. THE trial court has also taken into consideration the factual aspect of the said decision of Dashrathbhai Govindbhai Shah v. State of Gujarat (supra ). It appears that in the said matter, two persons were found going on a scooter. Neither of them was the owner of the said scooter. The police had information that opium was hidden in the scooter. On the said information, scooter was stopped and on search of the said scooter opium was seized from the said scooter. There it was observed by this Court that both the persons going on the said scooter were in actual and conscious possession of the said opium and, therefore, both the persons going on the said scooter were convicted by the trial court and the conviction was upheld by this Court in view of the provisions made in Section 54 of the said Code. ( 13 ) THIS Court has observed therein that it was not very much necessary to establish as to who was the owner of the said mudammal - opium. ( 13 ) THIS Court has observed therein that it was not very much necessary to establish as to who was the owner of the said mudammal - opium. Further this Court has observed that when the mudammal - opium was seized from the scooter and when the scooter was found in possession of the two accused persons then in view of the provisions made in Section 54 of the said Act it was required to be presumed that both the persons going on the said scooter were required to be treated in actual possession thereof, unless they explain the same. In the present case also, we would not be concerned with the ownership of the vehicle in question. We would not be concerned with the ownership of the opium seized from the said vehicle. The fact remains that the appellant and the co-accused were only the persons found to be travelling in the said vehicle which was driven by the appellant. Both the persons were found to be in the jeep sitting side by side. In that view of the matter, the prosecution would be justified in invoking the provisions made in Section 54 of the said Act read with Section 35 thereof in order to argue that both the persons, the appellant as well as the co-accused, should be treated to be in actual possession of the said mudammal opium. ( 14 ) THE trial court appears to have accepted the said argument of the prosecution by invoking the provisions made in Section 54 and 35 of the said Act in order to hold that the appellant as well as the co-accused both were found in actual possession of the said opium and, therefore, both were equally guilty for possessing the same, contrary to the provisions made in the said Act. ( 15 ) THE learned advocate for the appellant has again argued that if the said evidence on record is accepted as it stands, then also on the basis of the said fact that nudammal - opium was found in possession of the co-accused and not in the possession of the appellant and, therefore, the appellant could not be convicted in the matter. As said above, the trial court has considered the provisions of Section 35 and 54 of the said Act. As said above, the trial court has considered the provisions of Section 35 and 54 of the said Act. The trial court has also considered the interpretation of the said provisions made by the Honble Supreme Court and other High Court wherein it has been clearly held that in such circumstances, it would be open to the accused persons to plead and prove that he was not in conscious possession of mudammal. In the present case, we find that the appellant herein has nowhere even made an effort to explain the said position. Therefore, by invoking the provisions made in Section 35 and 54, the trial court has accepted that the appellant as well as the co-accused both were in possession of the said mudammal article. It seems to be the intention of the Parliament that in such eventuality, a group of persons may be in joint possession of the contraband article, if the contraband article is found from the circle of persons sitting around that mudammal article, then all will claim that the said mudammal article was not in his possession. Therefore, the provision appears to have been made to the effect that in such eventuality it would be open to the concerned accused persons to show that he/she was not in conscious possession of a particular mudammal article. Therefore, in the case on hand, it was open to the present appellant to show to the trial court that the mudammal opium was not in his possession. ( 16 ) MERE denial in further statement recorded under Section 313 of the said Code would not be sufficient compliance to the requirement of rebuttal to the provisions made in Section 35 and 54 of the said Act. Even, if we take it that the appellant was not required to lead evidence to prove his position then also from the evidence on record, the appellant should have been in position to show that he was not in possession of the said mudammal - opium at all. ( 17 ) AS said above, the conduct of the appellant is found to be quite consistent with his guilt. He was travelling in the vehicle with the co-accused right from the beginning. It was a jeep car and the appellant and the co-accused both were coming right from the State of Rajasthan. They were the only two persons travelling in the said vehicle. He was travelling in the vehicle with the co-accused right from the beginning. It was a jeep car and the appellant and the co-accused both were coming right from the State of Rajasthan. They were the only two persons travelling in the said vehicle. Therefore, the cotton bag containing the mudammal - opium could be very well seen by the appellant as the co-accused was sitting by his side. Then as said above, the appellant was also trying to run away by driving the jeep car in a different direction; despite the signal given to him to stop the vehicle. Thereafter, the appellant, alongwith the co-accused, tried to run away when the vehicle was made to stop. If the appellant had no idea about the presence of the mudammal opium in the said vehicle then he would not have ignored the signal of the police to stop the vehicle. Sameway, he would not have tried to run away with the co-accused after the vehicle was made to stop. Therefore, his conduct is quite in consonance with his guilt. Therefore, on one hand there is consistent evidence of conduct on the part of the appellant, leading to his guilt. On the other hand, the provisions made in Section 35 and 54 of the said Act also indicate that the appellant was also in possession of the said mudammal opium. On going through the judgment of the trial court and on going through the evidence on record, I am of the view, that the trial court was justified in holding that alongwith co-accused, the appellant was also in possession of the contraband article. Admittedly, the appellant had no pass or permit for possessing or carrying the said mudammal - opium and, therefore, he had committed offence for which he had been convicted by the trial court. ( 18 ) THE learned advocate for the appellant has relied upon a decision of Avtar Singh v. State of Punjab reported in A. I. R 2002 S. C. 3343, wherein the Honble Supreme Court has observed that the custody or control over the goods must be proved. It has been further observed therein that bags containing poppy husk seized from the vehicle in which accused were travelling and one of them was found driving the said vehicle. The other two persons were found sitting on the bags. It has been further observed therein that bags containing poppy husk seized from the vehicle in which accused were travelling and one of them was found driving the said vehicle. The other two persons were found sitting on the bags. Two other occupants fled away as soon as vehicle was stopped. Accused were not examined on the question of possession of bags. On the basis of evidence on record it was held that it could be said that accused were in possession of poppy husk bags and, therefore, conviction was set aside. ( 19 ) IN the present case, we find that the accused persons have suggested to the Police Officer, Mr. Chauhan that there were 10 to 15 persons travelling. All of them ran away. The said fact has not been established from the evidence on record. Only two persons were travelling in the said vehicle and the conduct on the part of them would naturally lead this Court also to believe that both the persons were in possession of the said mudammal opium. 19. 1. Another citation shown by the learned advocate for the appellant is the case of Dinesh v. State of Madhya Pradesh reported in 1990 A. I. R. Cri. L. J. 119. There the Honble Supreme Court has observed that conscious possession is the offence. The driver of the vehicle cannot be convicted unless opium found in the car was known to him. There the opium was found concealed in the car and, therefore, it was observed that the owner of the vehicle must be shown to have knowingly permitted car to be used in commission of offence. ( 20 ) IN the present case, we find that on one hand there is a strong evidence of the conduct of the appellant and on the other hand, the prosecution would be entitled to the protection available under an umbrella of Section 35 and 54 of the said Act. Moreover, as said earlier the appellant as well as the co-accused both had engaged one common advocate before the trial court which clearly indicates that there was no conflict of interest. Therefore, the evidence on record clearly establishes that the appellant as well as the co-accused both were found in possession of the mudammal - opium and, therefore, it cannot be said that the appellant was not in conscious possession of the mudammal - opium. Therefore, the evidence on record clearly establishes that the appellant as well as the co-accused both were found in possession of the mudammal - opium and, therefore, it cannot be said that the appellant was not in conscious possession of the mudammal - opium. The trial court was justified in depending upon the evidence on record and also on the provisions made in Section 35 and 54 of the said Act, which has been interpreted by the Honble Supreme Court as well this Court in decisions referred to hereinabove. .