'Conscious Possession' Under NDPS Act: Explained

"In the present case also though no contraband is found in possession of accused no. 1 (Aryan Khan), six grams of charas was found in possession of accused no. 2 (Arbaaz Merchant) which Khan was having knowledge, thus it can be said it was in conscious possession of both the accused," the court's order said. Elaborating on the knowledge part, the order holds:" admittedly accused no.1 and accused no.2 are friends since long. They travelled together and they were apprehended together at the International Cruise Terminal. Further in their voluntary statements both of them disclosed that they were possessing said substance for their consumption and for enjoyment. Thus, all these things show that accused no.1 was having knowledge of the contraband concealed by accused no.1 in his shoes."

What does the term 'conscious possession' under the Narcotic Drugs and Psychotropic Substances Act mean and what is the test laid down to determine 'conscious possession'? Let's examine the precedents on this issue.

CONSCIOUS POSSESSION UNDER THE NDPS ACT.

The NDPS Act itself does not use the term 'conscious possession'. Throughout the Act, the term possession occurs standalone without the term 'conscious' preceding it anywhere. The term has its origins in a plethora of Supreme Court and High Court judgements which have held that the term 'possession' under the NDPS Act must mean conscious or mental state of possession and not merely physical possession. To give a crude example, if a delivery partner is caught delivering a package containing illegal drugs, he/she will not be held liable for the offence of possession unless it can be proven that there was mental awareness of the illegal drugs or- as the courts have put it- there was "conscious possession".

By specifying that possession must always be conscious in nature, court have laid down that 'possession' consists of two elements- one, the physical control and second the intent. Courts have drawn this element of mental state from S.35 of the NDPS Act which deals with the presumption of mental state of accused. In a 2015 case, a 2-judge bench of the Supreme Court in Mohan Lal v State of Rajasthan [2015 (8) SCALE627] reiterated that "possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact."

The most authoritative pronouncement on the issue of 'conscious possession' comes from a 2003 judgement of the Supreme Court of India in Madan Lal v State of Himachal Pradesh [2003 (6) SCALE 483], where the court laid down that unless the possession is coupled with requisite mental element i.e conscious possession and not merely custody without awareness the nature of the possession, S.20 of the NDPS Act would not be attracted. Elaborating on the mental element of the possession the court held: "The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. As noted in Gunwantlal v. The State of M.P (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person whom physical possession is given holds it subject to that power or control."

Thus, the question of 'conscious possession' becomes a subjective test to be determined with reference to the factual backdrop of each case. In the facts of that case the question was whether the driver of a vehicle that has been found to be used to conceal illegal drugs could be help liable for conscious possession. The court took notice of the fact that all the accused persons were travelling in a vehicle; they were known to each other; it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle. Taking these factors together, the court concluded that the accused knew about transportation of charas, and each of the passengers had a role in the transportation and possession with conscious knowledge of what they are doing. Thus, culling out relevant facts from the evidence on record, the court held that driver did not stand on a different footing merely because he was a driver of the vehicle. Further, the court held that once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge.

In a 2010 case of Dharampal Singh v State of Punjab, [2010 (10) SCALE229] the Supreme Court further explained the import of the term 'conscious possession'. The court held that knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The Court also explained the burden of proof required of the prosecution and the accused while considering the issue of 'conscious possession'. The court held that- "the initial burden of proof of possession lies on the prosecution and once it is discharged legal burden would shift on accused. The Standard of proof expected from the prosecution is to prove possession beyond all reasonable doubt but what is required to prove innocence by the accused would be preponderance of probability. Once the accused plea is found probable, discharge of initial burden by the prosecution will not nail him with offence. Offences under the Act being more serious in nature higher degree of proof is required to convict an accused…… In the context of Section 18 of the Act once possession is established the accused, who claims that it was not a conscious possession has to establish it because it is within his special knowledge."

In the facts of that case, the co-accused was driving a car that was found to be concealing 65 kg of opium. The court took note of the fact that the vehicle was not a public transport vehicle and thus it couldn't be said that the passenger was not in 'conscious possession of the substances recovered. "Once possession is established the Court can presume that the accused had culpable mental state and have committed the offence…. we find that the appellants have not been able to account for satisfactorily the possession of opium", the court held. Thus, the court significantly held that the standard of conscious possession would be different in the case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another.

This difference in the standard of conscious possession can be seen when one looks at the case of Sorabkhan Gandhkhan Pathan and another vs. State of Gujarat [MANU/SC/1234/2003] , where the court acquitted a person who was merely travelling in an autorickshaw that was found to be used to transport illegal drugs. The court held that- "the prosecution has not produced any material whatsoever to establish that either this appellant had the knowledge that Appellant 1 was carrying the contraband or was, in any manner, conniving with the said accused in carrying the contraband. In the absence of any such material, to convict the second appellant only on the ground that he was found in the autorickshaw, in our opinion, is not justified."

Similarly, in Avtar Singh v State of Punjab [AIR 2002 SC 3343] the vehicle loaded with bags of poppy husk was a truck and when it was stopped one person sitting in the cabin and another person sitting in the back of the truck fled away. The accused in the said case were not the only occupants and in the said background the Court held that they cannot be presumed to be in the possession of the goods.

In 2015, a 2-judge bench of the Supreme Court in Mohan Lal v State of Rajasthan, [2015 (8) SCALE 627] observed that that the term "possession" could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge. This was explained in an earlier decision in Ram Singh vs Central Bureau Of Narcotics [AIR 2011 SC 2490] the question for the Court's consideration was whether the servant of the owners of the hotel from where the opium was recovered could be held guilty of 'conscious possession of the opium. The court held that a servant of a hotel, cannot be said to be in possession of contraband belonging to his master unless it is proved that it was left in his custody over which he had absolute control.

In case relied on by the Special NDPS Court to hold that the Aryan Khan was liable for conscious possession- Union Of India Through NCB vs Md. Nawaz Khan [MANU/SC/0689/2021] a 3-judge bench of the Supreme Court reiterated the governing principles laid down in Mohan Lal Case, Dharampal Singh Case, Madan Lal and Rattan Mallik. Making special reliance on the Rattan Mallik, the court held that finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act and reversed the order of the High Court granting bail to the accused. In that case, the accused was driving a car that had 3 kgs of heroin hidden in the front bonnet of the car. The court made note of the fact that it was a private vehicle which was intercepted at Lucknow was proceeding from Dimapur (Nagaland); the quantity of 3.300 kg of a narcotic substance which is a commercial quantity was found concealed in the vehicle; accused-respondent was not an unknown passenger but a person who, according to the prosecution, was closely in contact with the co-accused.

Thus, as can be gleaned from the facts and the findings of the above cases, the test of 'conscious possession' depends on the independent facts and circumstances of each case. The prior relationship of the co-accused, the location where illegal drugs have been found, the behaviour of the accused, the quantity of the illegal substances recovered, etc are some of the relevant facts to be taken into consideration before the court reaches a conclusion on the question of 'conscious possession.' Crucially, in Megh Singh v State of Punjab [AIR 2003 SC 3184], the court underscored the importance of taking the facts of each case into account before deciding whether there is 'physical possession'. It observed that: " circumstantial flexibility is crucial…. one additional or different fact may make a world of difference between conclusions in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact-based."