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Synopsis

The Supreme Court has said that unless and until the contrary is proved in trials of cases involving offences within the purview of the NDPS Act, it may be presumed that the accused has committed an offence in respect of any articles prohibited to be possessed by him and for the possession of which, he failed to account satisfactorily.

A bench of Justices J B Pardiwala and R Mahadevan, however, emphasised 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 court said.

Court dismissed an appeal filed by Rakesh Kumar Raghuvanshi against the Madhya Pradesh High Court's judgment which upheld the Special Judge's order holding him guilty of carrying three cartons of poppy husk in train and sentencing him to 10 years rigorous imprisonment with Rs one lakh fine.

Referring to the case of Avtar Singh Vs State of Punjab reported in (2002), the bench said 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," the bench said.

Citing Section 54 of the NDPS Act, the bench said, as envisaged by the provision itself, unless and until the contrary is proved in trials of cases involving offences coming within the purview of the NDPS Act, it may be presumed that the accused has committed an offence under the Act in respect of any articles prohibited to be possessed by him and for the possession of which, he failed to account satisfactorily.

Therefore, 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 court said.

In the case, the bench said, "We looked 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 to us."

In such circumstances, Section 54 comes into play and the court would be justified in drawing the presumption that the accused was in conscious possession, the court added.

The bench further pointed out Section 35 of the NDPS Act deals with the presumption of culpable mental state. It 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 shifts the burden of proof onto the accused to demonstrate that they lacked knowledge or intent regarding the possession of the drugs.

"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," the bench said.

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, the bench said.

As per facts of the matter, the appellant was travelling on December 29, 1996 by Train No.1270, Bhopal Rajkot Express. There was information with the department that a young boy was travelling with three packets of poppy husk and was sitting in the general coach.

When the train arrived at the platform, the raiding party identified the boy and asked him to come out of the coach along with the three cartons. The appellant disembarked the coach with three cartons. He was searched and was found to be in "conscious possession" of poppy husk weighing around 50 Kgs. He further stated that he was travelling with a valid ticket. He was to visit his relative residing in Maninagar (Gujarat). He was detained at Ujjain Railway Police Station, MP.

The appellant's counsel Pragati Neekhra argued that there was nothing on record to indicate that the appellant was in conscious possession of the contraband.

The counsel said he appellant had nothing to do with the three cartons. She submitted that the search was carried out at a public place like a railway platform. There were many passengers in the train and the three cartons could have belonged to any one of the passengers. In such circumstances, the appellant deserves to be given a benefit of doubt, she said.

The State counsel, however, said there was no merit in the appeal as the young boy was found in conscious possession of the three cartons containing poppy husk.

The court cited Abdul Rashid Ibrahim Mansuri Vs State of Gujarat (2000), which 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 Madan Lal Vs State of Himachal Pradesh (2003), this court said whether there was conscious possession has to be determined with reference to the factual backdrop, the bench said.

The bench thus felt convinced that the high court committed no error in dismissing the appeal and affirming the judgment and order of conviction passed by the trial court. It directed the accused to surrender within eight weeks to serve out the remaining part of the sentence.

Case Title: Rakesh Kumar Raghuvanshi Vs The State of Madhya Pradesh