2025 INSC 96
SUPREME COURT OF INDIA
(HON’BLE J.B.
PARDIWALA, J. AND HON’BLE R. MAHADEVAN, JJ.)
RAKESH KUMAR
RAGHUVANSHI
Petitioner
VERSUS
STATE OF MADHYA
PRADESH
Respondent
Criminal
Appeal No. 1953 OF 2014-Decided on 16-01-2025
Criminal, NDPS
(A)
Narcotic Drugs and Psychotropic Substances Act, 1985, Section 8 r/w Section 15,
20(b), 54 - NDPS – Conviction Upheld - Recovery of 50 Kgs. of poppy husk - Presumption
from possession of illicit articles – Before the Court holds the accused guilty
of the offence under the NDPS Act, possession is something that the
prosecution needs to establish with cogent evidence - If the accused is found
to be in possession of any contraband which is a narcotic drug, it is for the
accused to account for such possession satisfactorily, if not, the presumption
under Section 54 comes into place - Appellant was found to be in
conscious possession of the three cartons containing poppy husk -
The defence put forward by the appellant that he had no idea about the
three cartons and that he got down from the coach along with the three cartons
only because the officers asked him to come out of the coach is something which
is not palatable - Do not find any satisfactory reply or explanation as to how
come he was sitting on one of the cartons and the other two cartons were
closely placed next to him - In such
circumstances, Section 54 referred to above, comes into play and the
court would be justified in drawing the presumption that the accused was in
conscious possession - High Court committed no error in dismissing the appeal
and thereby affirming the judgment and order of conviction passed by the Trial
Court.
(Para 16 to 19 and 24)
(B)
Narcotic Drugs and Psychotropic Substances Act, 1985, Section 8 r/w Section 15,
20(b), 54 – NDPS - Term ‘conscious possession – Held that conscious possession
refers to a scenario where an individual not only physically possesses a
narcotic drug or psychotropic substance but is also aware of its presence and
nature - In other words, it requires both physical control and mental awareness
- This concept has evolved primarily through judicial interpretation since the
term “conscious possession” is not explicitly defined in the NDPS Act - This
Court through various of its decisions has repeatedly underscored that
possession under the NDPS Act should not only be physical but also
conscious – Conscious possession implies that the person knew that he had the
illicit drug or psychotropic substance in his control and had the intent or
knowledge of its illegal nature.
(Para
21)
JUDGMENT
1.
This appeal arises from the judgment and order dated 7th May, 2013 passed by
the High Court of Madhya Pradesh, Jabalpur Bench at Indore in Crl.A.No.1213 of
1997 by which the High Court dismissed the appeal filed by the appellant herein
and thereby affirmed the judgment and order of conviction passed by the Trial
Court for the offence punishable under Section 8 read with Section
15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short
“the NDPS Act”).
2.
The case of the prosecution may be summarized as under:
(i) An ASI officer by
name Musharraf Beg lodged an FIR No.713/96 dated 30.12.1996 with the S.H.O.,
Police Station, G.R.P. Ujjain which reads thus:
”Regarding
registration of the crime, it is submitted that I, ASI M.Beg received
information from the informer while attending the duty on 29.12.96 at 22.15
o'clock that a dark complexioned person is traveling in Bhopal Rajkot 1270 up
train in the gallery of the bathroom at the last compartment of General Coach,
carrying three separate cartoon packets. He is sitting on one of them. This
information was entered in General Diary no. 2381 on 29.12.96 and to confirm
the information constable Braj Mohan was sent to summon witnesses Rakesh and
Prakash and they were made aware of the information received from the informer.
The panchnama of the information of the information was prepared. Headquarter
of senior officials of Railway Region Indore is in Indore. As per the
Information, on the possibility of the alteration of article and for the
confirmation of the said information being necessary and looking at the
circumstances, the search warrant could not be received whose panchnama has
been prepared. Two copies of the panchnama of the information of the informer,
in the situation of not receiving the search warrant the copy of the panchnama
under section 42 of NDPS Act was sent to Superintendent of Police
Railway, Indore through constable Dispatch rider no. 6735 of police station on
29.12.96. As per the information mentioned in General Diary No., reached along
with Head Constable Bharat Pandey, Head Constable Pradeep Singh, Constable Brij
Mohan Singh with the summoned witnesses, necessary materials Tarazu, baant,
seal, shellac etc to the spot at Platform no.1 of railway station, near parcel
office, near ver bridge. On the arrival of the train, deputed accompanied force
near to the coach and train guard constable 405 Umashankar and 610 Rajendra
Singh. Searched the suspect along with the witnesses in the coach No. 91105 and
on confirming the features of the suspect before the witnesses and in his
sudden attempt to leave the coach, he was stopped with the assistance of
accompanying force. He was summoned along with three cartoons he possessed, out
of the coach.Since, it will take time on the confirmation of the information
and the train stays for the less time. The moment he came out with the luggage
out of the train, was asked name and address. He told his name Rakesh son of
Shankar Lal resident of Sanwal Kheda, Tehsil and District Hoshangabad.
Subsequently also stated that at present he is living in Chhola Naka House
No.44, in the house of Kallu at Bhopal and paying the rent of Rs 300/- per
month. So, he was informed that he is having the opium poppy husk in three
cartoons which he possessed and he is smuggling to sell them. I have to take
the search of all three cartoons possessed by you. You could give your
search before Magistrate or Gazetted officer or even could be . given before
me. You could give your search to anyone. On this, appearing Rakesh gave his
consent to give the search to me of which the panchnama of the consent was
prepared before the witnesses. Rakesh took the body search of the force
accompanying me and the witnesses. Nothing suspected object could be found.
Thereafter, the search of the body of Rakesh was conducted. The three cartoons
were searched then opium poppy husk was found which was smelt and tasted to
witnesses who revealed to be opium poppy husk. Then, after this the panchnama
of possessing the suspected article, panchnama of being smelt and tasted and
panchnama of the measurement were prepared, it was measured in parcel office
which was carried by Mithu Lal son of Satya Narayan, Begumpura. all three
cartoons and kept on the measurement scale of parcel officer M.K.Jaiswal,
measured the cartoons measured 17 kg, 17 kg and 16 kg respectively making a
total of 50 kg of poppy husk, having the value of Rs 3500/- thus he was found
possessing these articles Illegally and on stating of not finding in written or
by any proof, the seizure memo was prepared. The copy of the panchnama was
made. Since I was not having the seal with my name so the action done at the
place of occurrence was affixed with the seal of police station. The samples
from the packets of the seized Opium poppy husk where article A - 1 A - 2 B - 1
B- 2 C - 1 and C-2 were marked and to send them to the Forensic Science
Laboratory for examination; a sample comprising of 250 grams each were taken
out from each of the cartoons. The criminal case under section
8/15 of NDPS Act is found on the aforesaid action made against Rakesh at
the place of occurrence. Due to this reason, panchnama was prepared. Thus on
panchnama of the action conducted at the aforesaid place of occurrence and as
per the details of the seizure articles of the case along with the accused
Rakesh are being produced to police station for further action. Please do the
further action.
On the basis of the
aforesaid written information and the seizure made at the place of occurrence
and from other documents, a criminal case under section 8/15 of NDPS
Act is registered and took for the investigation.
Action taken: Since the above report reveals
commission of offence(s) u/s 8/15 of NDPS Act----- Registered the case and
took up the investigation or, Directed/entrusted (Name of I.O.)-ASI Beg to take
up the investigation.
13.F.I.R. read over to
complainant/informant, admitted to be correctly recorded and a copy given to
the complainant/informant, free of cost. ”
(ii) Thus it appears
from the aforesaid that the appellant was travelling on 29.12.1996 by Train
No.1270, Bhopal Rajkot Express. There was information with the Department that
a young boy was travelling with three packets of poppy husk and was sitting in
the general coach. The information was to the extent that he was sitting near
bath room along with three cartons of poppy husk. It was also specified that he
was sitting on one of the packets containing contraband and the other two were
next to him. When the train, referred to above, arrived at the platform, the
raiding party identified the boy and asked him to come out of the coach along with
the three cartons. The appellant herein disembarked the coach with three
cartons. He was searched and was found to be in conscious possession of poppy
husk weighing around 50 Kgs.
3.
On FIR being registered the investigation commenced. At the end of the
investigation Police filed charge sheet in the Special Court. The Special Court
proceeded to frame charge for the offence enumerated above to which the
appellant pleaded not guilty and claimed to be tried.
4.
In the Course of the trial, the prosecution examined eleven witnesses. The
prosecution also relied upon few pieces of documentary evidence.
5.
Upon closure of the recording of the evidence by the prosecution the further
statement of the appellant was recorded under section 313 of the
CrPC. In his further statement, he stated that he was falsely implicated in the
alleged offence. He further stated that he was travelling with a valid ticket.
He was to visit his relative residing in Maninagar (Gujarat). He was detained
at Ujjain Railway Police Station (M.P.).
6.
The Trial Court upon appreciation of the oral as well as documentary evidence
on record held the appellant guilty of the alleged offence and sentenced him to
undergo 10 years rigorous imprisonment with fine of Rs.1,00,000/-. The
appellant went in appeal before the High Court. His appeal also came to be
dismissed.
7.
In such circumstances referred to above, the appellant is here before this
Court with the present appeal.
8.
Ms. Pragati Neekhra, the learned counsel appearing for the appellant vehemently
submitted that the Trial Court as well as the High Court committed a serious
error in holding the appellant guilty of the offence under the NDPS Act.
The principal argument of the learned counsel for the appellant is that there
is nothing on record to indicate that the appellant was in conscious possession
of the contraband. According to the learned counsel, when the officers asked
him to come out of the coach with the three cartons he was left with no
option but to abide by the directions of the officers and that is how he got
down from the coach with the three cartons. According to the learned counsel
otherwise he had nothing to do with the three cartons. The Learned counsel
would submit that the search was carried out at a public place like a railway
platform. There were many passengers in the train and the three cartons could
have belonged to any one of the passengers. In such circumstances, according to
the learned counsel the appellant deserves to be given a benefit of doubt.
9.
Learned counsel prayed that there being merit in her appeal, the same may be
allowed and the appellant be acquitted of the charge enumerated above.
10.
On the other hand, Mr. Bhupendra Pratap Singh, the learned counsel appearing
for the State submitted that no error not to speak of any error of law could be
said to have been committed by the two Courts below in holding the appellant
guilty of the alleged offence. He would submit that there is cogent and
reliable evidence on record to indicate that the appellant was in conscious
possession of the three cartons containing poppy husk. He further pointed out
that there was a specific information which was reduced into writing in
accordance with law that a young boy was travelling in train referred to above
and had in his possession contraband in the form of poppy husk. Accordingly,
search was undertaken and the appellant was found to be in possession. He would
submit that there being no merit in this appeal. The same may be
dismissed.
11.
Having heard the learned counsel appearing for the parties and having gone
through the materials on record, the only question that falls for our
consideration is whether the Courts below committed any error in holding the
appellant guilty of the alleged offence.
12.
Learned counsel appearing for the appellant invited our attention to a decision
of this Court in the case of Avtar Singh v. State of Punjab reported
in (2002) 7 SCC 419. Although the learned counsel seeks to rely upon this
judgment for the benefit of her client yet unfortunately the ratio of the
judgment or rather the dictum laid therein goes against the appellant. The
relevant observations are as under:
“The word 'possession'
no doubt has different shades of meaning and it is quite elastic in its
connotation. Possession and ownership need not always go together but the
minimum requisite element which has to be satisfied is custody or control over
the goods. Can it be said, on the basis of the evidence available on record,
that the three appellants one of whom was driving the vehicle and other two
sitting on the bags, were having such custody or control? It is difficult to
reach such conclusion beyond reasonable doubt. It transpires from evidence that
the appellants were not the only occupants of the vehicle. One of the persons
who was sitting in the cabin and another person sitting at the back of the
truck made themselves scarce after seeing the police and the prosecution could
not establish their identity. It is quite probable that one of them could be
the custodian of goods whether or not he was the proprietor. The persons who
were merely sitting on the bags, in the absence of proof of anything more,
cannot be presumed to be in possession of the goods. For instance, if they are
labourers engaged merely for loading and unloading purposes and there
is nothing to show that the goods were at least in their temporary
custody, conviction under Section 15 may not be warranted. At best,
they may be abettors, but, there is no such charge here. True, their silence
and failure to explain the circumstances in which they were traveling in the
vehicle at the odd hours, is one strong circumstance that can be put against
them. A case of drawing presumption under Section 114 of the Evidence
Act could perhaps be made out then to prove the possession of the accused, but,
the fact remains that in the course of examination under Section
313 Cr.P.C, not even a question was asked that they were the persons in
possession of poppy husk placed in the vehicle. The only question put to them
was that as per the prosecution evidence, they were sitting on the bags of
poppy husk. Strangely enough, even the driver was questioned on the same lines.
The object of examination under S. 313, it is well known, is to afford an
opportunity to the accused to explain the circumstances appearing in the
evidence against him. It is unfortunate that no question was asked about the
possession of goods. Having regard to the charge of which appellants were
accused, the failure to elicit their answer on such a crucial aspect as
possession, is quite significant. In this state of things, it is not proper to
raise a presumption under Section 114 of Evidence Act nor is it safe
to conclude that the prosecution established beyond reasonable doubt that the
appellants were in possession of poppy husk which was being carried by the
vehicle. The High Court resorted to the presumption under Section
35 which relates to culpable state of mind, without considering the aspect
of possession. The trial court invoked the presumption under S. 54 of
the Act without addressing itself to the question of possession. The approach
of both the courts is erroneous in law. Both the courts rested their conclusion
on the fact that the accused failed to give satisfactory explanation for
travelling in the vehicle containing poppy husk at an odd hour. But, the other
relevant aspects pointed out above were neither adverted to nor taken into
account by the trial court and the High Court. Non- application of mind to the
material factors has thus vitiated the judgment under appeal.” (Emphasis
supplied)
13. In Avtar
Singh (supra), some of the occupants who were travelling in the car on
being intercepted were in a position to escape. In such circumstances, the
prosecution was unable to identify them during the course of investigation.
This Court observed that anyone of those who made good their escape could be
the actual custodian of the contraband seized from the vehicle. This Court
further observed that the persons who were merely sitting on the bags, in the
absence of proof of anything more, cannot also be presumed to be in possession
of the contraband seized from the vehicle. Further, this Court held that for
failure of the Trial Court to examine the accused under Section
313(1)(b) CrPC with respect to their possession which is the main and
foremost incriminating element to attract the offence alleged against the
accused, the prosecution could not have claimed to have established the guilt
of the accused under Section 15 of the NDPs Act beyond the reasonable
doubt. In such circumstances, the judgment of the Trial Court convicting the
accused for the offence under Section 15 NDPS Act was reversed by
this Court.
14.
Thus, before the Court holds the accused guilty of the offence under
the NDPS Act, possession is something that the prosecution needs to
establish with cogent evidence. If the accused is found to be in possession of
any contraband which is a narcotic drug, it is for the accused to account for
such possession satisfactorily, if not, the presumption under Section
54 comes into place.
15. Section
54 of the NDPS Act being relevant in the context on hand is extracted
hereunder for convenient reference:
“54.
Presumption from possession of illicit articles.
—In trials under this
Act, it may be presumed, unless and until the contrary is proved, that the
accused has committed an offence under this Act in respect of —
(a) any narcotic drug
or psychotropic substance or controlled substance;
(b) any opium poppy,
cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus
specially designed or any group of utensils specially adopted for the
manufacture of any narcotic drug or psychotropic substance or controlled
substance; or
(d) any materials
which have undergone any process towards the manufacture of a narcotic drug or
psychotropic substance or controlled substance, or any residue left of the
materials from which any narcotic drug or psychotropic substance or controlled
substance has been manufactured, for the possession of which he fails to
account satisfactorily.”
16.
Therefore, as envisaged by the provision itself, unless and until the contrary
is proved in trials of cases involving offences coming within the purview of
the NDPS Act, it may be presumed that the accused has committed an offence
under the Act in respect of any articles prohibited to be possessed by him and
for the possession of which, he failed to account satisfactorily. Therefore, it
is the burden of the prosecution to establish that the contraband was seized
from the conscious possession of the accused. Only when that aspect has been
successfully proved by the prosecution, the onus will shift to the accused to
account for the possession legally and satisfactorily.
17.
We looked into the evidence as regards possession and are convinced that the
appellant was found to be in conscious possession of the three cartons
containing poppy husk. The defence put forward by the appellant that he
had no idea about the three cartons and that he got down from the coach along with
the three cartons only because the officers asked him to come out of the coach
is something which is not palatable to us.
18.
We have looked into the further statement of the accused. We do not find any
satisfactory reply or explanation as to how come he was sitting on one of the
cartons and the other two cartons were closely placed next to him.
19.
In such circumstances, Section 54 referred to above, comes into play
and the court would be justified in drawing the presumption that the accused
was in conscious possession.
20. Section
35 of the NDPS Act deals with the presumption of culpable mental state. It
states that in any prosecution under the NDPS Act, the court shall presume
that the accused had the requisite mental state, including intention,
knowledge, and motive, unless the accused can prove otherwise. This shifts the
burden of proof onto the accused to demonstrate that they lacked knowledge or
intent regarding the possession of the drugs.
21.
Conscious possession refers to a scenario where an individual not only
physically possesses a narcotic drug or psychotropic substance but is also
aware of its presence and nature. In other words, it requires both physical
control and mental awareness. This concept has evolved primarily through
judicial interpretation since the term “conscious possession” is not explicitly
defined in the NDPS
Act.
This Court through various of its decisions has repeatedly underscored that
possession under the NDPS Act should not only be physical but also
conscious. Conscious possession implies that the person knew that he had the
illicit drug or psychotropic substance in his control and had the intent or
knowledge of its illegal nature.
22. In Abdul
Rashid Ibrahim Mansuri v. State of Gujarat reported in 2000 (2) SCC 513,
this Court highlighted that once the prosecution proves physical possession,
the burden shifts to the accused to explain how he came into possession of the
contraband and prove that he was not aware of its presence or nature. The Court
ruled that a person who admits that drugs were found in his possession must
prove that he had no knowledge of the illicit nature of the substance.
23. In Madan
Lal v. State of Himachal Pradesh reported in (2003) 7 SCC 465, this Court
was dealing with a case where all the accused persons were travelling in a
vehicle when they were nabbed and recoveries were made from them. The relevant
extracts from the said judgment are set out below:
“19. Whether there was
conscious possession has to be determined with reference to the factual
backdrop. The facts which can be culled out from the evidence on record are
that all the accused persons were travelling in a vehicle and as noted by the
trial court they were known to each other and 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.
20. Section
20(b) makes possession of contraband articles an offence. Section
20 appears in Chapter IV of the Act which relates to offences
for possession of such articles. It is submitted that in order to make the
possession illicit, there must be a conscious possession.”
24.
In the overall view of the matter, we are convinced that the High Court
committed no error in dismissing the appeal and thereby affirming the judgment
and order of conviction passed by the Trial Court.
25.
In view of the aforesaid, the appeal fails and is hereby dismissed.
26.
The appellant is on bail. He shall surrender within a period of eight weeks to
serve out the remaining part of the sentence.
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