Justice JB Pardiwala, Justice R Mahadevan, Supreme Court
Possession Of Contraband Under NDPS Act Should Not Only Be Physical But Also Conscious: Supreme Court
|The appeal before the Apex Court arose from the judgment of the Madhya Pradesh High Court affirming the order of conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985.
The Supreme Court reiterated that possession of contraband under the NDPS Act should not only be physical but also conscious.
The Court affirmed the conviction of an accused under the NDPS Act and emphasized that it is the burden of the prosecution to establish that the contraband was seized from the conscious possession of the accused. Only when that aspect has been successfully proved by the prosecution, the onus will shift to the accused to account for the possession legally and satisfactorily.
The appeal before the Apex Court arose from the judgment of the Madhya Pradesh High Court dismissing the appeal filed by the appellant and affirming the order of conviction passed by the Trial Court for the offence punishable under Section 8 read with Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
The Division Bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan clarified, “Conscious possession refers to a scenario where an individual not only physically possesses a narcotic drug or psychotropic substance but is also aware of its presence and nature. In other words, it requires both physical control and mental awareness.”
Factual Background
The ASI had received information from the informer that a young boy carrying three separate cartoon packets was travelling in a train in the gallery of the bathroom of a General Coach. After a search was conducted, the petitioner was found with all three cartoons containing a total of 50 kg poppy husk, having a value of Rs 3500. A criminal case came to be registered against the petitioner-accused under sections 8 & 15 of the NDPS Act. The Trial Court held the appellant guilty of the alleged offence and sentenced him to undergo 10 years of rigorous imprisonment with a fine of Rs 1,00,000. The appellant went in appeal before the High Court but the same came to be dismissed.
Reasoning
The Bench, at the outset, made it very clear that before the Court holds the accused guilty of the offence under the NDPS Act, possession is something that the prosecution needs to establish with cogent evidence. If the accused is found to be in possession of any contraband which is a narcotic drug, it is for the accused to account for such possession satisfactorily, if not, the presumption under Section 54 comes into place.
Elucidating further upon section 54 of the NDPS Act, the Bench held, “Therefore, as envisaged by the provision itself, unless and until the contrary is proved in trials of cases involving offences coming within the purview of the NDPS Act, it may be presumed that the accused has committed an offence under the Act in respect of any articles prohibited to be possessed by him and for the possession of which, he failed to account satisfactorily. Therefore, it is the burden of the prosecution to establish that the contraband was seized from the conscious possession of the accused. Only when that aspect has been successfully proved by the prosecution, the onus will shift to the accused to account for the possession legally and satisfactorily.”
The Bench was convinced that the appellant was found to be in conscious possession of the three cartons containing poppy husk. The Bench also rejected the defence put forward by the appellant that he had no idea about the three cartons and he got down from the coach alongwith the three cartons only because the officers asked him to come out of the coach. “In such circumstances, Section 54 referred to above, comes into play and the court would be justified in drawing the presumption that the accused was in conscious possession”, the Bench added.
Reference was made to Section 35 of the NDPS Act which deals with the presumption of culpable mental state and states that in any prosecution under the NDPS Act, the court shall presume that the accused had the requisite mental state, including intention, knowledge, and motive, unless the accused can prove otherwise. This shifts the burden of proof onto the accused to demonstrate that they lacked knowledge or intent regarding the possession of the drugs.
“This Court through various of its decisions has repeatedly underscored that possession under the NDPS Act should not only be physical but also conscious. Conscious possession implies that the person knew that he had the illicit drug or psychotropic substance in his control and had the intent or knowledge of its illegal nature”, the Bench further explained. Thus, dismissing the appeal, the Bench ordered the appellant, who is currently on bail, to surrender within 8 weeks.
Cause Title: Rakesh Kumar Raghuvanshi v. The State of Madhya Pradesh (Neutral Citation: 2025 INSC 96)