NDPS Case- 'False Implication' Is A Stereo Typed Defence Of Accused Who Are Found In Possession Of Contraband: Allahabad HC

This assertion came from the bench of Justice Chandra Dhari Singh while dealing with the bail pleas of 4 NDPS Act accused booked under section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possessing 650.740 kgs of Ganja.

The background of the Case

In the instant case, it is an admitted fact that in the year 2019, a raiding team of the Directorate Of Revenue Intelligence Lucknow raided a mini truck in which a total of 5 persons were travelling. On asking regarding smell coming from the truck, they told that contraband article Ganja is loaded in the truck and same was brought from Odisha.

Thereafter in the search of the mini truck under Section 49 of NDPS Act, 122 packets having the weight of 650.740 kgs contraband was found kept in the secret cavity of the truck. They were later on arrested and booked under the NDPS Act.

Arguments put forth

The Counsel for the applicants, who are in jail since 11.05.2019, submitted that they were arrested and the DRI Team forcefully took their signatures on the blank papers, and thereafter, the alleged recovery memo was prepared.

It was further submitted that the raiding team got prepared the statements of the applicants forcibly in the custody, under Section 67 of the NDPS Act and that the applicants are innocent and are being falsely implicated in the crime and thus, it was prayed that the applicants be granted bail.

Court's observations

At the outset, the Court noted that the alleged seized contraband Ganja having a weight of 650.740 kgs is much more than the commercial quantity i.e. 20 kgs, therefore, provisions of Section 37 of the NDPS Act are attracted in this case.

Further, the Court noted that the accused applicants were apprehended by the raiding team on the spot and were having conscious and constructive possession over the recovered Ganja.

With regard to the conscious and constructive possession vis-a-vis applicability of Section 54 of the NDPS Act, the Court observed thus:

"There is specific statutory presumption in relation to contraband that comes within the ambit of N.D.P.S. Act. In view of Section 54 of the N.D.P.S. Act presumption shall be drawn against the accused unless and until the contrary is proved. The expression 'unless and until the contrary is proved', clearly imposes the burden of proving that possession of prohibited substance is legal on the accused himself."

[NOTE: The question of 'conscious possession' becomes a subjective test to be determined with reference to the factual backdrop of each case as it happened in the present case.

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.

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.'

Read more about it here: 'Conscious Possession' Under NDPS Act: Explained]

Further, regarding the argument of the counsel for the applicants of false and planted recovery, the Court observed thus:

"Experience shows that such statements are made in almost every case, therefore, such kind of plea of false implication without any basis is not liable to be accepted at this stage."

Lastly, considering the recovery of a huge quantity of Ganja, coupled with the fact that applicants were apprehended at the spot and were having conscious and constructive possession over the recovered Ganja, the Court did not find any reasonable ground in terms of Section 37 of the N.D.P.S. Act to hold that applicants are not guilty of an offence and they are not likely to commit any offence while on bail.

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