NDPS Act | 'Conscious Possession' Along With Physical Possession Essential Element To Constitute Offence: Madras High Court

Justice Vivek Kumar Singh of the Madurai bench observed that like actus reus and mens rea, which were essential elements in criminal law, in the NDPS Act, the physical, as well as the mental possession of drugs, were essential elements.

“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 offence, the same goes for the NDPS Act where physical, as well as mental possession of drugs, are essential elements to constitute an offence under the same law,” the court observed.

The court added that offences involving drug peddling affected the financial security of the nation and contributed to anti-national activities as it provided funds to terrorist organisations. Thus, the court highlighted that a balance had to be struck to make sure that the criminals involved in grave offences do not go unpunished and at the same time an innocent is protected from an adverse interpretation of the law. In the court's opinion, the rule of conscious possession provided this balance.

“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 court said.

The court was hearing an application made in a criminal appeal seeking to stay the conviction of the trial court and seeking bail. The petitioners were intercepted in a bike in possession of 23 kg of Ganja by the police. The Additional Special Judge had convicted both the petitioners- driver of the bike and the pillion rider, to undergo ten years of rigorous imprisonment and to pay a fine of Rs. 1,00,000/- with 12 months of simple imprisonment in case of default.

With respect to the petitioner who was riding the bike, it was argued that the prosecution could not prove his nexus with the other accused or where he had given lift to the other accused. it was argued that that any normal person would evade away from the scene of place by seeing police officers and that there was no incriminating evidence against him.

Regarding the petitioner who was the pillion rider, it was argued that he had been incarcerated for almost 7 months and was even granted anticipatory bail pending trial. Thus, the petitioners sought bail and informed the court that they were ready to abide by any condition imposed by the court.

The state, however, objected to the grant of bail and submitted that even if there were lapses in the investigation, that alone could not yield benefit to the accused. It was also submitted that the accused had previous cases. The prosecution also informed that they had proved conscious possession of the contraband and thus the bar created under Section 37(1)(b)(ii) of the NDPS Act applies.

Taking note of these submissions, the court was not inclined to grant bail considering the antecedent of the petitioner and the quantity of contraband involved in the case.

Regarding the second petitioner, the court noted that if he was not aware of the possession of contraband, he would have stopped the two-wheeler and would not have escaped from the scene of the occurrence. Thus, the court observed that there were reasonable grounds to believe his guilt which would not entitle him to bail.

Case Title: Dharma v Inspector of Police

Citation: 2024 LiveLaw (Mad) 82