Crl.Misc No M- 29860 of 2010 Gurpreet Singh v. State of Punjab Present: Mr.J.S.Chahal, Advocate, for the petitioner. Mr.A.P.S.Maan, Addl. A.G. Punjab. *** ORDER The present petition has been filed on behalf of petitioner Gurpreet Singh for grant of regular bail in case FIR No.20 dated 26th February, 2010 under Sections 15/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1986 (for short,”the Act”) registered at Police Station , Ahemdgarh. Notice of motion was issued on 12.10.2010. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the case whereas he is not involved in the alleged offence. As per allegations in the FIR, recovery of 120 Kgs of poppy-husk was recovered from Scorpio vehicle bearing registration No. CH-03-M-2320 which was owned by Sukhwinder Singh and petitioner has been shown as driver in the said vehicle. Learned counsel further submits that the petitioner was not not found in conscious possession of the said contraband and no independent witness was joined by the police party. Learned counsel for the petitioner also submits that even if the allegations contained in the FIR are presumed to be correct, the petitioner cannot be held liable for the said recovery as petitioner was not the owner of the said vehicle but was driver of the vehicle. The said vehicle was owned by Crl.Misc No M- 29860 of 2010 [2] Sukhwinder Singh which has been released on Superdari to him vide order dated 28th May, 2010. The said vehicle was sold to Gurmail Singh vide agreement dated 22nd July, 2009 and receipt (a part payment of the price) has also been duly executed on 13th August, 2009 which is a part of the challan file. The said vehicle was given on daily rent of Rs.1200/- by said Gurmail Singh to Nazar Singh. The petitioner being the driver employed by said Nazar Singh could not be in a position to know as to what material was loaded by the owner of the vehicle as his duty was to drive the vehicle only and in case of presence of the driver of the vehicle, the petitioner cannot be vicariously held liable for the offence committed by said Nazir Singh. Even Gurmail Singh and Sukhwinder Singh have not been charged for the offence committed by them whereas they being owners of the vehicle, are liable under the provisions of Section 25 of the Act. Learned counsel for the petitioner also submits that the petitioner is not a previous convict and he is no more required by the police for further investigation, trial may take some time in final conclusion and no purpose would be served by keeping him in custody as he is behind the bar since 26th February, 2010. Learned counsel for the petitioner relies upon the judgment of Hon'ble the Apex Court in Avtar Singh v. State of Punjab 2 002(4) R.C.R.(Crl.) 180 and judgment of this Court in Dayal Singh and another v. State of Punjab 2007(2) R.C.R.(Criminal) 596 in support of his contention. Mr.A.P.S.Maan, learned Addl. A.G. Punjab opposes the bail on the ground that petitioner being driver was fully aware and Crl.Misc No M- 29860 of 2010 [3] was responsible for the said recovery which was commercial quantity and he does not deserve the concession of bail. Mr.Mann relies upon the judgment of Hon'ble the Apex Court in Madan Lal and another v. State of HP [2003] 7 Supreme Court Cases 465 and judgment of this Court reported as Sukhwinder Singh @ Sukha v. State of Punjab 2009(1) RCR (Crl.) 325 in support of his contention. Heard the arguments of learned counsel for the parties and have also gone through the contents of the FIR as well as other documents available on the file. As per case of the prosecution, recovery of the alleged contraband was made from Scorpio vehicle which was driven by the present petitioner and the vehicle belongs to Sukhwinder Singh who sold it to Gurmail Singh vide agreement to sell dated 22nd July, 2009 and a receipt thereof is also part of the challan file and the said vehicle was given by Gurmail Singh to Nazar Singh on daily rent basis. Now the question for consideration is whether the present petitioner being diver of the vehicle can be held liable for having found in conscious possession of the contraband? As per judgment of Hon'ble the Apex Court in Avtar Singh's case (supra), the possession and ownership need not always go together but for conscious possession, the Court has to be satisfied with custody or control over the goods. In the present case, co-accused Nazar Singh to whom the vehicle was given on rent was also sitting in the vehicle and recovery was made from the dicky of the said vehicle. Crl.Misc No M- 29860 of 2010 [4] Admittedly, the petitioner was working as driver of the vehicle where the alleged recovery of contraband was made from the dicky and co-accused Nazar Singh was also there in the vehicle to whom the vehicle was given on rent. In presence of owner of the vehicle, the driver cannot be said to be in conscious possession of the goods lying in the dicky. It is not the case of the prosecution that only the driver was there in the vehicle and in such like situation, the driver was supposed to know what is there in the vehicle but in presence of the owner of the vehicle, the duty of the driver was to drive the vehicle. Since the petitioner was not in conscious possession of the alleged contraband, he was not supposed to have knowledge of the same. This view has been supported by the judgment of Hon'ble the Apex Court in Avtar Singh's case (supra) wherein it has been observed that even the persons who were sitting over the bags of the contraband were not found to be in conscious possession of the contraband in-spite of the fact that they were travelling in the vehicle. Similarly in the present case also, the petitioner being driver of the vehicle, cannot be said to be in conscious possession of the alleged contraband. Moreover, the petitioner is in custody since 26th February, 2010 and is not a previous convict and no useful purpose would be served by keeping him behind the bar. The vehicle in dispute has already been released on sapurdari. Accordingly, the application is allowed and petitioner Gurpreet Singh is directed to be released on bail on his furnishing bail bond and surety bond to the satisfaction of Chief Judicial Crl.Misc No M- 29860 of 2010 [5] Magistrate/Duty Magistrate, Sangrur. However, it is made clear that any observation made here-in-above shall not be construed as an expression of opinion on the merits of the case. (DAYA CHAUDHARY) December 24, 2010 JUDGE raghav