New Delhi, Jan 23 The Supreme Court has ruled that in trials of cases involving offences coming within the purview of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, it is the burden of the prosecution to establish that the contraband was seized from the conscious possession of the accused.
“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 top court said.
Explaining the term, it said that 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, requiring both physical control as well as mental awareness.
“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,” it added.
“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 (dealing with presumption from possession of illicit articles) comes into place,” said a Bench of Justices J.B. Pardiwala and R Mahadevan.
The Justice Pardiwala-led Bench was considering an appeal filed by a man who was convicted under the NDPS Act and sentenced to ten years’ rigorous imprisonment for carrying three cartons of poppy husk in a train.
The appellant, who was detained at Ujjain Railway Police Station, stated that he was falsely implicated and was travelling with a valid ticket to visit his relative residing in Gujarat’s Maninagar.
Before the apex court, the appellant’s counsel argued that he was not in conscious possession of the contraband and he had nothing to do with the three cartons.
Further, there were many passengers in the train and the three cartons could have belonged to any one of the passengers and in such circumstances, the appellant deserves to be given a benefit of doubt.
After considering the evidence as regards possession, the top court ruled that it was convinced that the appellant was found to be in conscious possession of the three cartons containing poppy husk.
It said, “The defence put forward by the appellant that he had no idea about the three cartons and that he got down from the coach along with the three cartons only because the officers asked him to come out of the coach, is something which is not palatable to us.”
“We have looked into the further statement of the accused. We do not find any satisfactory reply or explanation as to how come he was sitting on one of the cartons and the other two cartons were closely placed next to him,” it added.
Dismissing the appeal, the apex court said, “We are 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.”
It ordered the appellant, who is on bail, to surrender within a period of eight weeks to serve out the remaining part of the sentence.
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