Home > Recent Judgements > NDPS Act, Prosecution Must Establish Contraband Was Seized From ‘Conscious Possession’ Of Accused
Jan 24, 2025
INTRODUCTION
In the case between Rakesh Kumar Raghuvanshi vs The State of Madhya Pradesh, the Narcotic Drugs and Psychotropic Substances (“NDPS”) Act is one of the harshest pieces of legislation in India about drug trafficking and abuse. However, despite its stringent punishments, Indian courts have always kept making the point that the prosecution must prove all the constituent elements of the offense to obtain a conviction under such a statute. One such critical element was the concept of ‘conscious possession’ of contraband. India courts have invariably emphasized the aspect of establishing conscious possession in NDPS cases. Supreme Court judgments on several landmark judgments have elucidated the distinction between “possession” and “conscious possession”.
UNDERSTANDING 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.
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.
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.
ISSUES
- Has the prosecution collected evidence enough to demonstrate the knowledge of the defendant of the illegal item?
- Were proper procedures followed during the seizure to ensure admissibility of evidence?
- Can the evidence by the prosecution prove the accused is directly connected with the contraband?
- How does the prosecution deal with situations where contraband is found in shared spaces, vehicles, or luggage?
JUDGMENT
The Bench found that the appellant was proved to be in conscious possession of the three cartons of poppy husk. It also dismissed the defense that was raised by the appellant that he had no idea about the three cartons and he alighted from the coach along with the three cartons only when the officers told him to step 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 a 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 then shifts the burden of proof to the accused to prove that he neither knew nor had any intent in relation to the drugs.
OBSERVATION
The requirement of establishing conscious possession under the NDPS Act therefore serves as an insurance against false convictions. Only those with proven guilt should undergo the stringent consequences under the Act, and thus protect innocent bystanders caught unwittingly in its dragnet. For the prosecution, this would thus impose a responsibility to carry out adequate investigations with irrefutable proof. Its provisions, however, should be maintained by the courts to balance between deterring crimes of drugs and protecting the rights of the individual.
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