Mere driving of a vehicle carrying contraband does not establish conscious participation without proof of knowledge.

On 25 October 1990, a mini truck bearing registration No. WB/65/0355 was intercepted at Rathbari, Malda, and 27 bags of boiled rice were allegedly recovered from it.

The prosecution alleged that appellants Bholanath Mondal and Saidul Rahaman claimed ownership of the rice but failed to produce the requisite documents, permit or licence under paragraph 3 of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967.

Appellant Bikash Ghosh was driving the truck. A case was registered under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955, and the Trial Court convicted all the appellants.

During the pendency of the appeal, Bholanath Mondal and Saidul Rahaman died, and the appeal abated against them; it survived only as to Bikash Ghosh.

The defence contended that the rice was produced from agricultural lands belonging to the deceased appellants and that Bikash Ghosh was merely a hired driver.

Whether the prosecution established beyond reasonable doubt that Bikash Ghosh consciously participated in, or had knowledge of, the alleged unlawful possession or transportation of the 27 bags of boiled rice in violation of the applicable Control Order?

Whether the conviction under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955, could be sustained merely because Bikash Ghosh was driving the vehicle from which the rice was recovered?

Whether the contradictions, omissions and deficiencies in the prosecution evidence, including the manner of search and seizure and the absence of independent witnesses, created a reasonable doubt in favour of the surviving appellant?

The Court applied Section 7(1)(a)(ii) of the Essential Commodities Act, 1955, which prescribes punishment for contravention of an order issued under Section 3 of the Act, read with Section 14 concerning presumptions relating to culpable mental state where applicable.

The alleged substantive violation was of paragraph 3 of the West Bengal Rice and Paddy (Licensing and Control) Order, 1967, governing the licensing and lawful possession or transportation of rice and paddy.

The Court further applied the fundamental criminal-law principle that the prosecution must prove the accused’s guilt beyond reasonable doubt and that the accused is not required to establish his defence beyond doubt; where the evidence reasonably supports innocence, the benefit of doubt must follow.

The Court also held that mere physical control of a vehicle or status as its driver does not, without additional incriminating circumstances, establish conscious participation or knowledge of an illegal consignment.

The Court found that PW2’s evidence indicated that the truck was hired at the relevant place for Rs. 200 and that the rice was loaded only thereafter, suggesting that Bikash Ghosh participated as a hired driver rather than as the owner or person responsible for the rice.

No evidence established that he owned the rice, had a proprietary or possessory interest in it, or knew that its transportation violated the Control Order.

The prosecution evidence was further weakened because the complainant allegedly arrived after loading was complete, came alone, no other available independent witness was examined, and the Investigating Officer admitted that material witnesses were examined away from the alleged place of occurrence.

PW2 also stated that the other appellants sought to produce documents relating to their agricultural lands but were not given an opportunity to do so, lending some support to the defence explanation concerning the source of the rice.

In these circumstances, the Trial Court erred by attributing criminal liability to Bikash Ghosh principally on the basis of his being the driver, without proof of conscious knowledge or participation.

His mere presence as the hired driver of the mini truck was insufficient to sustain the conviction.

The appeal was allowed; the judgment and order of conviction under Section 7(1)(a)(ii) of the Essential Commodities Act were set aside insofar as they related to Bikash Ghosh, and he was acquitted.

His bail bond was directed to stand discharged, subject to compliance with Section 437A of the Code of Criminal Procedure, as applicable.