from him that he is a stock witness of Gurprit Singh Investigator. The defence version assumes greater importance for the reason that the recovery is shown to have been effected within the view of aforesaid Kulbir Singh, who has been cited as a recovery witness in Ex.DA and Ex.DB. When the defence version competes in probability with the prosecution version, the former has to be believed. In re: Kashmir Singh (supra), the full Bench of this Court has observed that “there is presumption that the accused was in conscious possession. This presumption, however, will not apply unless an opportunity is given to the accused to rebut and explain, the presumption by putting question under Section 313 Cr.P.C. There is presumption of culpable mental state and conscious possession on the part of the accused under Sections 35 and 54 of the NDSP Act. The presumptions are, however, rebuttable. These presumptions will not be available to the prosecution unless trial judge gives an opportunity to the accused to rebut the presumption by putting question under Section 313 of Cr.P.C. Therefore, the accused should be given an opportunity to lead evidence in defence in support of his stand. A fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.” Adverting to the facts of the instant case, a glance through the statutory statement of the accused recorded under Section 313 of Cr.P.C. would reveal that no specific question has been put to either appellant with regard to their being in conscious possession of the recovered bags of poppy husk. In the absence thereof, it is very difficult to say that the prosecution has demonstrated the conscious possession of the appellants qua these bags.
