SHAHZADA and another vs STATE
This criminal appeal arises from the conviction of the appellants for an offence under the Control of Narcotic Substances Act, 1997, following the recovery of 180 kilograms of charas and one kilogram of opium from the trunk of a car in which they were passengers. The core legal question was whether passengers in a vehicle can be held liable for the possession of contraband found in the vehicle's trunk when the driver, who fled the scene, had exclusive control of the vehicle. The Supreme Court held that the prosecution failed to establish that the appellants had conscious possession of the narcotics. The Court reasoned that mere presence in a vehicle does not equate to possession of items concealed in a trunk, absent evidence of knowledge, conspiracy, or abetment. The key principle laid down is that for passengers to be held liable for contraband found in a vehicle, the prosecution must prove they had knowledge of the illicit items or that the items were in plain view; otherwise, the burden of proof regarding conscious possession remains with the prosecution.
- Can passengers in a vehicle be held liable for narcotics found in the trunk if they had no knowledge of the contraband?
- Does the mere presence of a passenger in a vehicle containing narcotics establish joint possession with the driver?
- What is the evidentiary requirement for the prosecution to establish conscious possession of narcotics against vehicle passengers?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 382-B, Code of Criminal Procedure 1898
- Article 122, Qanun-e-Shahadat Order 1984
Rahmat Hussain Jafferi, J.--This judgment will dispose of Criminal Appeals No, 381 & 382 of 2009, as they arise out of a common judgment.
2. The present appeals, by leave of the Courts are directed against a common judgment dated 08.01.2007, passed by Peshawar High Court, Peshawar, by which the conviction for offence punishable under Section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred to as 'the Act') and sentence of imprisonment for life as also fine of Rs, 200,000/- or in default thereof to suffer SI for two years with benefit of Section 382-B, Cr.PC, awarded to both the appellants, by the learned Judge, Special Court (CNS) NWFP, Peshawar, was maintained.
3. Brief facts giving rise to the present appeals are that on 14.07.2004 at about 8:00 pm, a car bearing Registration No, IDM-2699 was intercepted at Jamrod Road Peshawar near Hayat Abad Chowk but the Driver accelerated the speed of the car in order to take away it but the police party chased the same and ultimately it hit with the official vehicle of ANF, resulting the stoppage of car of the culprits. The Driver ran away from the scene of incident whereas the appellants, who were sitting on the rear and front seats of the car were apprehended. The car was taken to the Police Station where on search, from its digi 180 kilograms of charas and one kilogram of opium were secured. Samples were drawn for chemical analysis, such memo. of arrest and recovery was prepared in presence of two official witnesses. After completing the investigation, the appellants were challaned in the Court, where they were tried and convicted, as mentioned above:
4. At the trial, the prosecution examined three witnesses, including the complainant and mashir of recovery. They fully supported the prosecution case. From their evidence, it is clear that the appellants were not driving the car but the Driver of the car ran away from the scene of incident, whereas the allegation against the appellants is that they were sitting in the car.
5. In these circumstance, learned counsel for the appellants has argued that the car was not in possession of the appellants, as the same was driven by the Driver, who ran away, therefore, whatever was available in the car was in possession of the Driver; that the property was not lying open within the view and knowledge of the appellants, therefore, they had no knowledge of the property lying in the digi of the car, as such they cannot be held to be in conscious possession of the property, therefore they are not liable for the possession of the property as in the case of the Driver. Conversely, learned Special Prosecutor General for ANF has stated that both the appellants were travelling in the car with huge quantity of charas and opium lying in the digi of the car, therefore, they are in joint possession with the Driver of the car, hence they are also responsible for the offence alongwith Driver of the car, who ran away from the scene of the incident.
6. We have heard the learned counsel for the parties and have perused the record of this case very carefully. As regards the appellants, who were simply sitting in the car, their case is distinguishable from the case of the Driver and for involvement of such persons the prosecution is required to lead some evidence to show that they had knowledge of the property lying in the car or they had abetted or conspired with the Driver in the commission of the crime. No such evidence has been led by the prosecution to prove the above aspects of the case so as to make the appellants responsible for the commission of the crime alongwith the Driver. If the property would have been lying open within the view of the appellants or they knew the placement of the property then the situation would have been different. In such a situation, the appellants were required to explain their position, as required under Article 122 of Qanun-e-Shahadat Order, 1984 and without such explanation their involvement in the case would have been proved. As the property was not within their view and they had no knowledge of the placement of the property, therefore, they cannot be held responsible and in joint possession of the property with the Driver. As such the case of the prosecution against the appellants is highly doubtful.
7. In the light of what has been discussed above, the conviction and sentences awarded to the appellants alongwith the impugned judgment, passed by the learned High Court, were set aside by our short order dated 18.01.2010. These are the reasons of the said short order, which reads as under: For the reasons to be recorded later on, while allowing these appeals, the conviction and sentences of the appellants, recorded by the Courts below, are set aside. They are acquitted of the ' charges and be released forthwith, if not required in any other case."