'Conscious Possession' Under NDPS Act: Explained

A Special NDPS Court has recently rejected the bail application of Aryan Khan by holding that even while Narcotics Control Bureau did not recover any drugs in his possession, he would not be entitled to bail as he was in "conscious possession" of the drugs found with Accused No.2- Arbaaz Merchant. The Special judge observed that Khan apparently knew his friend Abaaz Merchant was hiding charas (2.6 gms) for them to consume on the cruise, and therefore, it would amount to both of them being in conscious possession of the drugs. "In the present case also though no contraband is found in possession of accused no. 1 (Aryan Khan), six grams of charas was found in possession of accused no. 2 (Arbaaz Merchant) which Khan was having knowledge, thus it can be said it was in conscious possession of both the accused," the court's order said. Elaborating on the knowledge part, the order holds:" admittedly accused no.1 and accused no.2 are friends since long. They travelled together and they were apprehended together at the International Cruise Terminal. Further in their voluntary statements both of them disclosed that they were possessing said substance for their consumption and for enjoyment. Thus, all these things show that accused no.1 was having knowledge of the contraband concealed by accused no.1 in his shoes." What does the term 'conscious possession' under the Narcotic Drugs and Psychotropic Substances Act mean and what is the test laid down to determine 'conscious possession'? Let's examine the precedents on this issue. CONSCIOUS POSSESSION UNDER THE NDPS ACT. The NDPS Act itself does not use the term 'conscious possession'. Throughout the Act, the term possession occurs standalone without the term 'conscious' preceding it anywhere. The term has its origins in a plethora of Supreme Court and High Court judgements which have held that the term 'possession' under the NDPS Act must mean conscious or mental state of possession and not merely physical possession. To give a crude example, if a delivery partner is caught delivering a package containing illegal drugs, he/she will not be held liable for the offence of possession unless it can be proven that there was mental awareness of the illegal drugs or- as the courts have put it- there was "conscious possession". By specifying that possession must always be conscious in nature, court have laid down that 'possession' consists of two elements- one, the physical control and second the intent. Courts have drawn this element of mental state from S.35 of the NDPS Act which deals with the presumption of mental state of accused. In a 2015 case, a 2-judge bench of the Supreme Court in Mohan Lal v State of Rajasthan [2015 (8) SCALE627] reiterated that "possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact." The most authoritative pronouncement on the issue of 'conscious possession' comes from a 2003 judgement of the Supreme Court of India in Madan Lal v State of Himachal Pradesh [2003 (6) SCALE 483], where the court laid down that unless the possession is coupled with requisite mental element i.e conscious possession and not merely custody without awareness the nature of the possession, S.20 of the NDPS Act would not be attracted. Elaborating on the mental element of the possession the court held: "The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. As noted in Gunwantlal v. The State of M.P (AIR 1972 SC 1756) 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." Thus, the question of 'conscious possession' becomes a subjective test to be determined with reference to the factual backdrop of each case. In the facts of that case the question was whether the driver of a vehicle that has been found to be used to conceal illegal drugs could be help liable for conscious possession. The court took notice of the fact that all the accused persons were travelling in a vehicle; they were known to each other; 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. Taking these factors together, the court concluded that the accused knew about transportation of charas, and each of the passengers had a role in the transportation and possession with conscious knowledge of what they are doing. Thus, culling out relevant facts from the evidence on record, the court held that driver did not stand on a different footing merely because he was a driver of the vehicle. Further, the court held that once possession is established the person who claims that it was not a conscious...

'Conscious Possession' Under NDPS Act: Explained

Sneha Rao

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