Conscious Possession under the Narcotic Drugs and Psychotropic Substances Act, 1985

By Apoorva Mathur*1

Introduction

In October 2021, a special court in Mumbai denied bail to Aryan Khan, son of Bollywood actor Shah Rukh Khan, even though the Narcotics Control Bureau (NCB) did not find any drugs on him during his arrest on October 3 after a raid on a cruise ship off Mumbai. The arrest of Aryan, along with several others, has highlighted the stiff nature of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, and the nuances that go into the detection and seizure of narcotics, and how the matter is investigated and prosecuted.

The court rejected his bail application on the ground that he had “conscious possession” of drugs. He has been accused under the same sections of the NDPS Act as his friend Arbaaz Merchant and model Munmun Dhamecha, on whom six grams and five grams of hashish, respectively, were allegedly found. This article throws light upon the concept of ‘conscious possession’ under the NDPS act by referring to the legal provisions as well as certain pronouncements from the Supreme Court of India.

The Narcotic Drugs and Psychotropic Substances (NDSP) Act, 1985

The NDPS, 1985 constitutes the statutory framework for drug law enforcement in India. This enactment consolidates the erstwhile Acts viz., the Opium Act 1857; the Opium Act 1878 and the Dangerous Drugs Act, 1930. Furthermore, India’s obligations under certain international convention, namely the 1961 Single Convention, the 1971 Convention against Psychotropic Substances and the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, are implemented domestically through appropriate provisions in the NDPS Act.

Presumption of culpable mental state and conscious possession

Presumption of Innocence is one of the fundamental principles of criminal jurisprudence which axiomatically enunciates that an accused is presumed to be innocent until proven guilty. This fundamental principle is underpinned by the maxim “semper necessitas probandi incumbit ei qui agit‟: the necessity of proof lies with the person who levels the charges.

Section 35 of the NDPS Act, deals with presumption of culpable mental state of an accused requiring the Court to presume the existence of such mental state for a prosecution under the Act. Furthermore, an explanation is provided in the provision which states-

“In this section “culpable mental state” includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact.”

This essentially means that a person charged with an offence under the NDPS Act would have to rebut the presumption against him and the burden of proof would lie on him to show that he has not committed the act constituting an offence.

In Naresh Kumar alias Nitu v. State of Himachal Pradesh (2017) 15 SCC 684, it was held by the Supreme Court that the presumptions against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt.

In Noor Aga v. State of Punjab and Ors. (2008) 16 SCC 417 it was held that Section 35 and 54 of the NDPD Act which imposes a reverse burden on the accused is constitutional as the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution.

Further, in Abdul Rashid Ibrahim Mansuri v. State of Gujarat AIR 2000 SC 821, where an accused admits that narcotic drugs were recovered from bags that were found in his possession at the time of his apprehension, in terms of Section 35 of NDPS Act the burden of proof is then upon him to prove that he had no knowledge that the bags contained such a substance.

“Conscious Possession”

The term ‘conscious possession’ has not been explicitly mentioned in NDPS Act keeping it apart from the term ‘possession’, but various judicial enactments from the Supreme Court and High Courts have evolved the term ‘conscious possession’ according to the needs and circumstances of the respective case.

According to Section 35 of NDPS ACT, 1985:

  1. In any prosecution for an offence under this Act which requires a culpable state of mind of the accused, the Court shall presume the presence of such state of mind but it shall be a defense for the defendant to prove the fact that he had no such state of mind concerning the act charged as an offense in that prosecution. In this section, the culpable state of mind includes intention, motive knowledge of a fact, and belief in, or reason to believe, a fact.
  2. For this section, 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 possibility.

Thus, we can infer that conscious possession means a mental state of possession that is bound to be considered along with physical possession of the illicit material. Just like in criminal law, ‘Actus Reus’ and ‘Mens Rea’ are two essential ingredients to constitute a criminal offense, the same goes for the NDPS Act where physical, as well as mental possession of drugs, are essential elements to constitute an offense under the same law.

Eg: If a cab driver travels unknowingly of the drugs kept in the car and if he is caught along with the same, then not only physical possession of drugs will have to be proved but the mental state of the accused used behind committing the act will also have to be proved, rather the ‘conscious possession’ of the drugs by the accused will have to be evidenced.

Conclusion

The principle of innocent until proven guilty is a cardinal rule of criminal justice administration. An accused is presumed to be innocent and it is the burden of the prosecution to prove any wrongdoing beyond any reasonable doubt. The burden is heavy and entails that after all the prosecution evidence has been appreciated, the only conclusion which the court can draw is the guilt of the accused and no other conclusion can be drawn. However, offences relating to peddling, possessing, consuming or dealing in any manner with narcotic drugs is a grave offence which adversely affects the social fabric of the society by injecting dangerous and addictive substances into the veins of young and impressionable youth. In addition to the direct consequences, it also affects the financial security of the nation and more seriously contributes to anti national or terroristic activities by providing funds to terrorist and unlawful organisations. It is a necessary evil that the criminals involved in grave offences are not allowed to take advantages of the law and benefit from the provision meant for innocents. However, it also has to be ensured that an innocent is protected from some adverse interpretations of the law. The rule of conscious possession, thus provides a balance between strict enforcement of law on one hand and protecting the rights of the accused on the other.

*The author is a Ph.D. research scholar at Rashtriya Raksha University