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A Critical Analysis Of Conscious Possession Under Narcotic Drugs And Psychotropic Substances Act, 1985

Preface Of N.D.P.S Act

Drugs. What comes to our mind when we hear this word? According to Human psychology, it is a fact that when a human hears something he figures out his picture in his big upper house called to mind. Do drugs attract a good picture or positive outcome? No, definitely no. why? Because its effects are proved to be catastrophic for society as a whole. With the same view, our legislature enacted the statute i.e. N.D.P.S to punish those low life who are involved in the drugs traffic or consumption business.

N.D.P.S Act strictly follows the rule of stringent punishment. Such punishment involves a minimum quantum of punishment of imprisonment for ten years which may extend to twenty years and a minimum fine of Rs. 1 Lakh which may extend to 2 lakhs. The object of this act is to limit the practices of illicit drugs which have the eventual tendency to destroy the household and lives of an innocent and respectable member of society, For this, the Act also provides a death sentence under section 31-A.

Offences Under N.D.P.S Act

The N.D.P.S Act punishes offenders with rigorous punishment mainly for possession, production, transportation, inter-state import or export, sale, purchase, or any other act that any particular section explicitly prohibits. For example, section 19 of the N.D.P.S Act articulates the punishment for embezzlement of opium by cultivators.

Conscious Possession

The expression 'Possession' is of more than one meaning. It literally means "the state of having, owning, or controlling something." Upon the perusal of the above meaning, one can tell possession states the physical control over something, over which a person has the power of control. So long he has its possession the thing is under his personal protection. A man cannot be said to have possession over anything if he does not have dominion of power over it.

There should be a scope of control over the article. For example, a man cannot be said to be in possession of drugs if such substance is found on his open wrist while he was sleeping. The second requisite is 'consciousness' of having control over something, it relates to the mental element of the human being which involves that a person who has something is in awareness that he possesses a particular thing. It is a state of mind which is deliberate or intended.

The same rule applies under N.D.P.S Act, which says a person should have physical control over an illicit narcotic drug or psychotropic substance and such possession should be coupled with mental knowledge i.e. awareness. Unless the possession is coupled with the requisite mental element i.e. Conscious possession and not merely custody without awareness of the nature of such possession, conviction under N.D.P.S Act will not be sustained.

For example, a person would be held guilty under section 15 of the N.D.P.S Act if he is caught with the possession of poppy straw and it is proved that he was aware of the nature of such substance in his possession, then such person will be sentenced to ten years rigorous punishment.

Criminal law follows the maxim "Actus non facit reum nisi mens sit rea" which articulates that a man shall not be held guilty without guilty intention. It allows Court to not punish an individual without the necessary intent to commit the crime, N.D.P.S Act also does not punish a person without the proven intention or knowledge. In every trial, it is to be looked, whether the alleged offender had the knowledge or intention to commit the offence.

As it was held in the case of Ashok Kumar vs. Union of India, 2002 Cri LJ 355, 2002 (3) WLN 162, 2002 (3) WLN 162 "There are, therefore, their requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession unless accompanied by intention; if a thing is put into the hand of a sleeping person, he has no possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed...."

Section 35 And 54

It is essential to discuss the provision of Section 35 & 54 of the N.D.P.S Act in relation to the rule of conscious possession. The Section states that in any prosecution for an offence in the present act, where the mental element is of primary importance, the court shall presume such mental state and it is open to the accused to rebut this presumption by proving he had no such mental state in relation to the offence he has been charged with. Further, it requires a fact that will only be proved when the prosecution is able to prove its case beyond a reasonable doubt. It would be wrong for the purpose of this section to reach conclusion on probability.

The court is bound to presume a mental state i.e. Intention, knowledge or motive in prosecution for offences where culpable mental state is required since the word "shall" is used in the provision hence, it is of compelling nature which bounds the court. The accused will be given an opportunity to rebut such presumption by adducing evidence in his favour that supports his side of the story.

Under this Section, the prosecution is only to prove the physical possession i.e. the control over the illicit article. Once, the prosecution has proved the possession beyond a reasonable doubt, then the onus shifts on the accused to prove his innocence. The degree of the accused onus is beyond a reasonable doubt. The onus is put upon the accused because it is on the accused as to how he came to possess such an article.

As it was observed by the Hon'ble Supreme Court, in Inder Sain vs. the State of Punjab, 1973 AIR 2309, 1974 SCR (1) 215 " it will be practically impossible for the prosecution to prove the 'knowledge'. The onus is shifted from prosecution to the accused because the fact how the accused came in the physical custody of the contraband is within his knowledge."
Section 35 of the Act would only come into play when the prosecution has proved all the essentials beyond reasonable doubt against the, accused. If otherwise, it shall not be applicable.

Section 54

Section 54 of the N.D.P.S Act states, under this act, in the trial, it may be presumed that a man has committed an offence in relation to any narcotic drug or psychotropic substance if he is found in possession of such contraband and has not satisfactorily reasoned such possession as to how and why he is in possession of such article. The provision under this section would only be applicable when the prosecution has proved the possession stage in respect of the accused.

The prosecution has to prove that an accused had control over illicit contraband.
This section also grants the accused to rebut presumption upon giving material evidence that is so incriminating in nature that showcases the innocence of the accused. That is why the act has used the expression "unless, and until the contrary is proved".

In the trial, if the accused are found to be in possession of any narcotic substance, it is for them to account for such possession satisfactorily, if not. The presumption under section 54 comes into play. If the court of law raises presumption under the said section without going considering the aspect of possession of contraband. Such an approach by the court would be erroneous. As it is laid down the provision that before going into presumption the question of possession shall be entertained. The prosecution shall prove beyond reasonable doubts that the accused had possession.

The N.D.P.S Act entertains offenders with strict punishment, but also follows the rule of 'stringent the punishment stricter the proof". It states in every trial the evidence should be examined keenly and should fill all the holes regarding the doubts about false implications. This act sees the intention, knowledge and awareness of every offender in respect to every offence.

Hence, it may be strict law with serious punishment but there exists caution situated to fulfil the provision of natural justice. Conscious possession comes into play when there is physical possession over contraband that is under the control of the possessor and this must be coupled with the awareness of such possession. Mere Physical possession is not sufficient to bring home the charge of conviction.

  1. Ashok Kumar vs. Union of India, 2002 Cri LJ 355, 2002 (3) WLN 162, 2002 (3) WLN 162.
  2. Inder Sain vs. the State of Punjab, 1973 AIR 2309, 1974 SCR (1) 215.
  3. Comprehensive classic on The Narcotic Drugs and Psychotropic Substances Act, 1985.

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