Wife Of Accused Had No Knowledge Of Contraband, No Conscious Possession: Gujarat High Court Upholds Acquittal Under NDPS Act

The Gujarat High Court has affirmed the acquittal of an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985, on the ground that she was merely accompanying her husband and had no knowledge of contraband being carried in the bag.

The Bench comprising Justice SH Vora remarked that her conscious possession as understood under the law does not surface even a reasonable doubt.

The development ensued in a State-appeal, preferred against the order of Special Judge, acquitting the Accused No. 2 (wife of accused no. 1) for offences under Sections 8(c), 20(b) and 29 of the NDPS Act.

Contraband weighing 7.79kg was recovered from the bag held by Accused No. 3. Subsequently, in the trial, Accused No. 3 and Accused No. 1 were found guilty under the NDPS Act while Accused No. 2 was granted benefit of doubt.

Per the Complainant, the acquittal of the Accused No. 2 was bad in law and overlooked Section 67 of the NDPS Act. It was further averred that the Accused No. 2 was the wife of Accused No. 1 and used to travel with him and had stayed together with the other Accused and therefore, the culpability presumption was triggered under Section 35 of the NDPS Act.

Section 35 provides for "Presumption of culpable mental state".

However, noting that the Accused No. 1 and 2 did not hold the bag and were not found with anything incriminating, the Bench concluded that the wife was merely a companion and not an accomplice in the crime.

It noted,

"No doubt, the moment the person had intention or knowledge of the fact, he or she is said to have culpable intention. In a case on hand, accused No.3-Imtekhab was holding the bag with key. As deposed by PW 2, he did not part with the key and therefore the Officer broke open the lock and thus respondent No.2 being companion of her husband and except for her presence as her husband's companion right from the receipt of information, her conscious possession as understood under the law does not surface even reasonable doubt. No any call details prior to and after the incident is placed on record between accused No.3-Imtekhab and respondent No.2."

Hence, the High Court held that the Trial Court rightly acquited the Accused no. 2 by granting her benefit of doubt.