2025 (7) TMI 1629 - SC - Indian Laws

Appellant is guilty of alleged offence under NDPS Act or not - smuggling - conscious possession of contrabend item or not - HELD THAT - In Avtar Singh 2002 (9) TMI 836 - SUPREME COURT some of the occupants who were travelling in the car on being intercepted were in a position to escape. In such circumstances the prosecution was unable to identify them during the course of investigation. This Court observed that anyone of those who made good their escape could be the actual custodian of the contraband seized from the vehicle. This Court further observed that the persons who were merely sitting on the bags in the absence of proof of anything more cannot also be presumed to be in possession of the contraband seized from the vehicle. Further this Court held that for failure of the Trial Court to examine the accused under Section 313(1)(b) CrPC with respect to their possession which is the main and foremost incriminating element to attract the offence alleged against the accused the prosecution could not have claimed to have established the guilt of the accused under Section 15 of the NDPs Act beyond the reasonable doubt. In such circumstances the judgment of the Trial Court convicting the accused for the offence under Section 15 NDPS Act was reversed by this Court. Thus 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. On looking into the evidence as regards possession and are convinced that the appellant was found to be in conscious possession of the three cartons containing poppy husk. The defence put forward by the appellant that he had no idea about the three cartons and that he got down from the coach alongwith the three cartons only because the officers asked him to come out of the coach is something which is not palatable. 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. This concept has evolved primarily through judicial interpretation since the term conscious possession is not explicitly defined in the NDPS Act. 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. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000 (2) TMI 807 - SUPREME COURT this Court highlighted that once the prosecution proves physical possession the burden shifts to the accused to explain how he came into possession of the contraband and prove that he was not aware of its presence or nature. The Court ruled that a person who admits that drugs were found in his possession must prove that he had no knowledge of the illicit nature of the substance. In the overall view of the matter it is convinced that the High Court committed no error in dismissing the appeal and thereby affirming the judgment and order of conviction passed by the Trial Court - the appeal fails and is hereby dismissed.

Summary

ISSUES:

Whether the prosecution proved beyond reasonable doubt that the accused was in conscious possession of the contraband (poppy husk) under the NDPS Act.Whether the presumption under Section 54 of the NDPS Act applies when the accused fails to satisfactorily account for possession of illicit articles.The scope and application of the presumption of culpable mental state under Section 35 of the NDPS Act.The evidentiary requirements to establish "conscious possession" under the NDPS Act.Whether the failure of the trial court to examine the accused under Section 313 CrPC on the issue of possession vitiates the conviction.

RULINGS / HOLDINGS:

The Court held that the prosecution successfully established that the accused was in "conscious possession" of the three cartons containing poppy husk, rejecting the defense that the accused had no knowledge or control over the cartons.The Court reaffirmed that under Section 54 of the NDPS Act, "it may be presumed, unless and until the contrary is proved, that the accused has committed an offence" in respect of narcotic drugs possessed and for which he fails to account satisfactorily.Section 35 of the NDPS Act shifts the burden to the accused to prove lack of knowledge or intent, and the Court found no satisfactory explanation was provided by the accused to rebut this presumption.The Court emphasized that "conscious possession" requires both physical control and mental awareness of the illicit nature of the substance, and such possession was established on the facts.The Court distinguished the present case from precedents where failure to examine the accused under Section 313 CrPC on possession was fatal, noting that in the present case, the accused's statement and evidence sufficiently addressed possession.The appeal was dismissed, affirming the conviction and sentence under Sections 8 and 15 of the NDPS Act.

RATIONALE:

The Court applied the statutory framework of the Narcotic Drugs and Psychotropic Substances Act, 1985, particularly Sections 8, 15, 35, and 54, alongside the procedural safeguards under Section 313 CrPC.Judicial precedents such as Avtar Singh v. State of Punjab were analyzed, clarifying that possession entails custody or control and that mere physical proximity to contraband is insufficient without proof of conscious possession.The Court reiterated the principle that the prosecution must first prove possession beyond reasonable doubt, after which the burden shifts to the accused under statutory presumptions to explain possession satisfactorily.The Court underscored the evolution of the concept of "conscious possession" through judicial interpretation, requiring both physical and mental elements.The Court found no error in the lower courts' application of these principles and no failure in examining the accused's explanation under Section 313 CrPC that would vitiate the conviction.