JUDGMENT A.N. Jindal, J.:-The appellant was tried under Section 15 of the NDPS, Act, for keeping in their possession 7 bags of poppy husk in a Tata Qualis vehicle bearing No. PB-11U-8860. Consequently, he was convicted and sentenced as under: Under Section: To undergo rigorous imprisonment for ten years and to 15 of NDPS Act pay a fine of Rs. One lac. In default of payment of fine to further undergo rigorous imprisonment for one year. 2. The factual matrix of the case is that on 9.3.2004, SI Rulda Singh along with ASI Tek Singh and some other police officials had placed a picket at Bhagat Singh Chowk, Patran. Rajinder Singh s/o Karnail Singh, an independent witness was also joined. In the mean time a Tata Qualis vehicle No. PB-11 U-8860, occupied by the four persons came and it was driven by Jaswant Singh. When the vehicle was stopped, out of the four persons three persons fled away whereas Gurmeet appellant was arrested at the spot and Jaswant Singh, who had absconded, was arrested later on. On search of the vehicle, 7 bags of poppy husk were recovered out of these bags, two samples containing 100 grams each were taken out from each bag and the remaining Poppy husk, on weighment came to be 34.8 Kgs in each bag. The sample as well the bags carrying bulk of poppy husk were sealed with the seals bearing impression ‘RS’. 14 samples and seven bags along with vehicle were taken into possession vide recovery memo Ex. PC. The personal search memo was prepared as Ex. PD. On the basis of Ruqa, Ex. PF, formal FIR, Ex.PF/1 was registered. Site plan Ex. PG of place of recovery and inventory report Ex.PH were prepared. On 10.3.2004, the case property was produced before Ilaqa Magistrate, who passed the orders, Ex.PJ/1. Accused Jaswant Singh, who absconded was arrested on 27.10.2004. Later on Satta was apprehended and he is facing trial where as the other accused Amrik Singh, who had not been arrested, was declared as Proclaimed offender. On completion of investigation, the challan was presented against both the accused. Consequently, both were charged under Section 15 of NDPS, Act and were tried. 3. Later on Satta was apprehended and he is facing trial where as the other accused Amrik Singh, who had not been arrested, was declared as Proclaimed offender. On completion of investigation, the challan was presented against both the accused. Consequently, both were charged under Section 15 of NDPS, Act and were tried. 3. To substantiate its case, the prosecution examined, HC Satnam Singh, PW1, ASI Tek Singh, PW2, SI Rulda Singh, PW3, C-II Darshan Singh, PW 4, SI/SHO Kuldip Singh, PW5, Kulwant Rai, Clerk DTO Office, Patiala, PW6, C. Narinder Singh, PW7 and closed its evidence. 4. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication. In defence, the accused examined C. Bhola Singh, DW1, Swaran Singh, DW2, Chhajju Singh, DW3, Amrik Singh, DW4, Jit Singh, DW5. 5. Admittedly, out of the four accused, three accused fled away, however, on the statement of the accused Gurmeet Singh, the accused Jaswant Singh was arrested. 6. Learned counsel for the appellant has urged that the prosecution has failed to establish the conscious possession of Gurmeet Singh regarding the alleged poppy husk, as much as the identification of the accused Jaswant Singh is also doubtful. 7. As regards, the identity of the accused Jaswant Singh, it was only at the instance of accused Gurmeet Singh. None of the witnesses came forward to testify that they had identified him. The accused Jaswant Singh cannot be convicted on the statement of his co-accused in the absence of any corroborative evidence. The statement of the co-accused is not admissible against him without any corroboration. Thus, it would not be safe to convict Jaswant Singh, merely on the statement of co-accused. 8. Now coming to the question whether the prosecution has been able to prove the conscious possession of contraband from Gunneet Singh, who admittedly was sitting in the vehicle whereas three other occupants including the driver of the said vehicle fled away. It does not stand established that Gurmeet Singh, accused was the owner of the vehicle or he was in any way connected with the vehicle or the contraband allegedly recovered from the Tata Qualis bearing vehicle No. PB-11U-8860. Had Gurmeet Singh been in conscious possession of the contraband then he would have also fled away along with the other accused persons. Had Gurmeet Singh been in conscious possession of the contraband then he would have also fled away along with the other accused persons. His silence in the court does not mean that he is really guilty or that he was in conscious possession of the contraband. 9. The expression ‘possession’ is a polymorphous term which assumes different colours in different contexts. It may carry different­ meanings in contextually different backgrounds. As was observed in Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and others, AIR 1980 S.C. 52 to work out completely logical and precise definition of possession uniformly applicable to all situations in the context of all statutes. The words ‘conscious possession’ connotes a particular state of mind which is deliberate and intended. No doubt, possession could be constructive or physical but still the possession must be to the knowledge of the offender. In this case, there were four accused, out of which three had run away and the conduct of the persons who ran away itself indicates their knowledge about the contraband and excludes the intention of the driver who had been prior to see the police party. Had the appellant been alone in the Tata qualis, then the element of possession could be attributed to him but when the vehicle was occupied by various persons and out of them three showed their nefarious designs by running, then the knowledge could be imputed to them. The failure to give any satisfactory explanation by the accused for being present on that place or in the said Tata qualis as driver, does not prove that he was in possession of these articles. A similar proposition arose before the Apex Court in Avtar Singh and others v. State of Punjab, AIR 2002 Supreme Court 3343. The facts of the said case reveal that the accused were travelling in the truck belonging to accused No.5. On checking near village Dhange 16 bags of poppy husk were recovered from the truck. Balbir Chand (appellant No.3) was driving the truck. A person sitting by the side of the driver and another person sitting backside of the truck ran away leaving the vehicle. The appellants No.1 and 2 and the driver of the vehicle appellant No.3 were apprehended at the spot. Balbir Chand (appellant No.3) was driving the truck. A person sitting by the side of the driver and another person sitting backside of the truck ran away leaving the vehicle. The appellants No.1 and 2 and the driver of the vehicle appellant No.3 were apprehended at the spot. In such situation, the Apex Court dealing with the issue of possession observed as under:­ “Possession is the core ingredient to be established before the accused in the instant case are subjected to the punishment under Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of Clause(xiv) of S.2, it is for them to account for such possession satisfactorily, if not, the presumption under Section 54 comes into play. We need not go into the aspect whether the possession must be conscious possession. Perhaps taking clue from the decision of this Court in Inder Sain v. State of Punjab, (1973(2) SCC 372) arising under the Opium Act, the learned trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of PW4 the Head constable, it is seen that appellant No.3 (accused No.4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused Nos.1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI(PW2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed in ascertain the role played by each of the accused and the nexus between the accused and the offending goods. The word ‘possession’ no doubt has different shades of meaning and it is quite elastic in its connection. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants-one of whom was driving the vehicle and other two sitting on the bags were having such custody or control? Can it be said, on the basis of the evidence available on record, that the three appellants-one of whom was driving the vehicle and other two sitting on the bags were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting in the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction under Section 15 may not be warranted. At best, they may be abettors, but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were travelling in the vehicle at the odd hours, is one strong circumstance that can be put against them. A case of drawing presumption under Section 114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but, the fact remains that in the course of examination under Section 313 Cr.P.C. not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination under Section 313 Cr.P.C. it is well known is to afford an opportunity to the accused to explain all the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under Section 114 of Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle.” 10. In this case also, no investigation regarding the fact as to for what purpose the three other accused were travelling in the Tata Qualis has been established. No particular question had been asked to the accused if he had loaded the bags in the jeep or that he was in possession and knowledge of the contents of the bags. In the absence of such evidence, no presumption under Section 54 of the Act without addressing itself to the question of possession could be drawn against the accused. 11. Full Bench of this Court in case Kashmir Singh v. State of Punjab,[2006(3) Law Herald (P&H) (FB) 2391] : 2006(2) RCR (Criminal) 477 observed as under: “9. Presumption of culpable mental state is something that a Court shall presume. This necessarily means that the Court shall presume it as a fact that the accused had the culpable mental state and it shall be recorded that such culpable mental state has been proved. Needless to say the accused can plead in defence that he had no such mental state but after the presumption has been raised he shall have to prove his defence that as a fact he had no mental state. He cannot rely merely on preponderance of probability.” 12. Firstly, it was the prosecution who was to establish the conscious possession only then the presumption under Section 54 of the Act could be raised, but the prosecution has failed in its obligation. To sum up, it may be observed that though the three occupants of the Tata qualis ran away, yet the Investigating Officer did not make much efforts to arrest them, despite the opportunity available to him. The appellant is neither proved to be the owner nor in any way connected with the contraband of the vehicle so recovered. The independent witness so joined was also not examined. The appellant is neither proved to be the owner nor in any way connected with the contraband of the vehicle so recovered. The independent witness so joined was also not examined. Therefore, it would not be appropriate to hold that the accused had such mental state to know about the contents of the bags loaded in the vehicle much less his constructive or conscious possession. Consequently, while holding that the prosecution has failed to establish the element of possession regarding 7 bags of poppy husk as recovered from the vehicle, which was allegedly driven by the Jaswant Singh interference in the impugned judgment has become inevitable at my end. For the foregoing reasons, I accept the appeal, set aside the impugned judgment and acquit the accused Gurmeet Singh of the charge framed against him. He is ordered to be set at liberty forthwith if not required in any other case. Fine, if deposited by him, be refunded. ——————————