NDPS Act | Standard Of "Conscious Possession" Different In Case Of A Public Transport As Opposed To Private Vehicle: J&K&L High Court

The bench comprising Justice Sanjay Dhar was hearing a plea in terms of which petitioner had invoked the jurisdiction of the Court under Section 439 of the Cr. P. C seeking bail in a case arising out of FIR for offences under Section 8/20, 8/22 and 29 of the NDPS Act registered with Police Station, Yaripora.

In his plea for bail, the primary contention raised by counsel for the petitioner was that nothing had been recovered from the possession of the petitioner and whatever was alleged to have been recovered had been recovered from the vehicle in which the petitioner was traveling.

Accordingly, the counsel argued that the petitioner had nothing to do with the recovered articles and it can, by no stretch of imagination, be stated that he was in conscious possession of the recovered items. It was on this ground the counsel asserted that even though the quantity of contraband substance recovered from the vehicle in question qualifies to be the commercial quantity, still then there are grounds to believe that the petitioner is not involved in the offence relating to possession of commercial quantity.

Adjudicating upon the matter Justice Dhar observed that the term "possession" appearing in various provisions of the NDPS Act has been interpreted by the Supreme Court in Mohan Lal vs. State of Rajasthan, (2015) 6 SCC 222 wherein the term "possession" appearing in Section 18 of the NDPS has been explained as

"It is quite vivid that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession".

Explaining the law in force on the issue, the bench noted that the term "conscious possession" is not capable of precise and complete logical definition of universal application in the context of all the statute and the knowledge of possession of contraband has to be ascertained from the fact and circumstances of the case.

The bench also placed reliance on a Judgement of Supreme court in Dharampal Singh v. State of Punjab, 2010 wherein SC observed that the standard of conscious possession would be different in case of public transport as opposed to a private vehicle with few persons known to one another.

Deliberating further on the issue Justice Dhar observed

"In the instant case, the petitioner along with the co-accused were travelling in a private car and were known to each other. The fact that the accused persons were travelling in a private vehicle and were known to each other clearly indicates that they were in conscious possession of the contraband substance recovered from the vehicle in question. It has not been explained or shown as to how the accused were travelling together in a vehicle which was not a public vehicle. Therefore, it can safely be stated that the petitioner was found to be in conscious possession of the contraband substances".

Thus, the material on record shows prima facie involvement of the petitioner in the possession of commercial quantity of contraband substance and having failed to establish the conditions necessary for grant of bail as contained in Section 37 of the NDPS Act, I do not find any merit in this petition and the same is, accordingly, dismissed, the bench concluded.

Case Title : Waqar Ahmad Dar Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 125

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