Recovery Of Drugs On Disclosure Statement Does Not Prima Facie Show Conscious Possession Of Contraband: J&K High Court

The Jammu and Kashmir High Court held that a statement leading to the discovery of contraband is not sufficient to prima facie show conscious possession with respect to the concealed material. The court said that mere possession will not be considered as an offence unless it was coupled with the knowledge of what was being possessed.The court held that the statement of an accused under Section 27 of the Evidence Act is only relevant to the extent of the recovery of an artefact connected to the crime and is not a confession in law with reference to the incriminating part of the memorandum recorded under Section 27 of the Evidence Act.A Bench of Justices Atul Sreedharan and Justice Rajesh Sekhri granted bail to the appellant in a case involving an intermediate quantity of narcotic drugs. The court observed that the right against self-incrimination is precious and cannot be waived by the accused in “ignorance of the consequences” of such waiver/relinquishment.The court stated that the accused must be fully aware of the degree and extent of punishment he may receive for the offence and must also be made aware that he could lose his right to appeal against a conviction based on a confession.The court held that for a confessional statement to be a reliable piece of evidence, it must be based on the informed consent of the accused. It added that before an accused can provide informed consent, it is necessary that he has a “consciousness of the consequences” arising out of his confession.The court observed that to make the right against self-incrimination effective, it is additionally required that the accused should have access to his counsel before making any confession. If he does not have counsel, then legal aid counsel shall be made available to him. The court further directed that the name and enrolment number of the counsel shall be recorded so that the entire process can later be verified.BACKGROUND:In this case, the appellant was denied bail by the trial court in a case registered under the NDPS Act. The prosecution alleged that the appellant's brother had handed him a packet containing 3 kg of heroin, which he then concealed in his house. The contraband was recovered from the house based on the disclosure statement. The prosecution heavily relied on the memorandum recorded under Section 27 of the Evidence Act and argued that the appellant was in conscious possession of the said illegal contraband.The court held that the recovery of the contraband based on the discovery statement is not sufficient to prima facie prove a guilty mind on the part of the appellant. The court noted that there was no other evidence to establish prima facie that the appellant had conscious possession of the said contraband.The court allowed the appeal subject to the furnishing of a personal bond of ₹1.00 lakh (Rupees one lakh) and one surety in the like amount to the satisfaction of the trial court.APPEARANCE:N. Hariharan & Kamal Nijhawan, Umair A. Andrabi, Tanisha, PunyaRekha Angara, Vasundhara N, Aman Akhtar, Sana Singh, & Vinayak Gautam, Advocates For APPELLANTVishal Sharma, DSGI Mr. Vipin Kalra, PP NIA for RESPONDENTSCase Title: Islam Ul Haq Peer vs Union of IndiaCitation: 2025 LiveLaw (JKL) 59Click Here To Read/Download Order

Recovery Of Drugs On Disclosure Statement Does Not Prima Facie Show Conscious Possession Of Contraband: J&K High Court

Aleem Syeed

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