Preface Of N.D.P.S Act
Drugs. What comes to our mind when we hear this word? According to Human
psychology, it is a fact that when a human hears something he figures out his
picture in his big upper house called to mind. Do drugs attract a good picture
or positive outcome? No, definitely no. why? Because its effects are proved to
be catastrophic for society as a whole. With the same view, our legislature
enacted the statute i.e. N.D.P.S to punish those low life who are involved in
the drugs traffic or consumption business.
N.D.P.S Act strictly follows the rule of stringent punishment
. Such punishment involves a minimum quantum of
punishment of imprisonment for ten years which may extend to twenty years and a
minimum fine of Rs. 1 Lakh which may extend to 2 lakhs. The object of this act
is to limit the practices of illicit drugs which have the eventual tendency to
destroy the household and lives of an innocent and respectable member of
society, For this, the Act also provides a death sentence under section 31-A.
Offences Under N.D.P.S Act
The N.D.P.S Act punishes offenders with rigorous punishment mainly for
possession, production, transportation, inter-state import or export, sale,
purchase, or any other act that any particular section explicitly prohibits. For
example, section 19 of the N.D.P.S Act articulates the punishment for
embezzlement of opium by cultivators.
The expression 'Possession' is of more than one meaning. It literally means "the
state of having, owning, or controlling something."
Upon the perusal of the
above meaning, one can tell possession states the physical control over
something, over which a person has the power of control. So long he has its
possession the thing is under his personal protection. A man cannot be said to
have possession over anything if he does not have dominion of power over it.
There should be a scope of control over the article. For example, a man cannot
be said to be in possession of drugs if such substance is found on his open
wrist while he was sleeping. The second requisite is 'consciousness' of having
control over something, it relates to the mental element of the human being
which involves that a person who has something is in awareness that he possesses
a particular thing. It is a state of mind which is deliberate or intended.
The same rule applies under N.D.P.S Act, which says a person should have
physical control over an illicit narcotic drug or psychotropic substance and
such possession should be coupled with mental knowledge i.e. awareness. Unless
the possession is coupled with the requisite mental element i.e. Conscious
possession and not merely custody without awareness of the nature of such
possession, conviction under N.D.P.S Act will not be sustained.
For example, a
person would be held guilty under section 15 of the N.D.P.S Act if he is caught
with the possession of poppy straw and it is proved that he was aware of the
nature of such substance in his possession, then such person will be sentenced
to ten years rigorous punishment.
Criminal law follows the maxim "Actus non facit reum nisi mens sit rea
articulates that a man shall not be held guilty without guilty intention. It
allows Court to not punish an individual without the necessary intent to commit
the crime, N.D.P.S Act also does not punish a person without the proven
intention or knowledge. In every trial, it is to be looked, whether the alleged
offender had the knowledge or intention to commit the offence.
As it was held in the case of Ashok Kumar vs. Union of India
, 2002 Cri LJ 355,
2002 (3) WLN 162, 2002 (3) WLN 162 "There are, therefore, their requisites of
possession. First, there must be actual or potential physical control. Secondly,
physical control is not possession unless accompanied by intention; if a thing
is put into the hand of a sleeping person, he has no possession of it. Thirdly,
the possibility and intention must be visible or evidenced by external signs,
for if the thing shows no signs of being under the control of anyone, it is not
Section 35 And 54
It is essential to discuss the provision of Section 35 & 54 of the N.D.P.S Act
in relation to the rule of conscious possession. The Section states that in any
prosecution for an offence in the present act, where the mental element is of
primary importance, the court shall presume such mental state and it is open to
the accused to rebut this presumption by proving he had no such mental state in
relation to the offence he has been charged with. Further, it requires a fact
that will only be proved when the prosecution is able to prove its case beyond a
reasonable doubt. It would be wrong for the purpose of this section to reach
conclusion on probability.
The court is bound to presume a mental state i.e. Intention, knowledge or
motive in prosecution for offences where culpable mental state is required since
the word "shall" is used in the provision hence, it is of compelling nature
which bounds the court. The accused will be given an opportunity to rebut such
presumption by adducing evidence in his favour that supports his side of the
Under this Section, the prosecution is only to prove the physical possession
i.e. the control over the illicit article. Once, the prosecution has proved the
possession beyond a reasonable doubt, then the onus shifts on the accused to
prove his innocence. The degree of the accused onus is beyond a reasonable
doubt. The onus is put upon the accused because it is on the accused as to how
he came to possess such an article.
As it was observed by the Hon'ble Supreme Court, in Inder Sain vs. the State of
, 1973 AIR 2309, 1974 SCR (1) 215 " it will be practically impossible for
the prosecution to prove the 'knowledge'. The onus is shifted from prosecution
to the accused because the fact how the accused came in the physical custody of
the contraband is within his knowledge."
Section 35 of the Act would only come into play when the prosecution has proved
all the essentials beyond reasonable doubt against the, accused. If otherwise,
it shall not be applicable.
Section 54 of the N.D.P.S Act states, under this act, in the trial, it may be
presumed that a man has committed an offence in relation to any narcotic drug or
psychotropic substance if he is found in possession of such contraband and has
not satisfactorily reasoned such possession as to how and why he is in
possession of such article. The provision under this section would only be
applicable when the prosecution has proved the possession stage in respect of
The prosecution has to prove that an accused had control over
This section also grants the accused to rebut presumption upon giving material
evidence that is so incriminating in nature that showcases the innocence of the
accused. That is why the act has used the expression "unless, and until the
contrary is proved".
In the trial, if the accused are found to be in possession of any narcotic
substance, it is for them to account for such possession satisfactorily, if not.
The presumption under section 54 comes into play. If the court of law raises
presumption under the said section without going considering the aspect of
possession of contraband. Such an approach by the court would be erroneous. As
it is laid down the provision that before going into presumption the question of
possession shall be entertained. The prosecution shall prove beyond reasonable
doubts that the accused had possession.
The N.D.P.S Act entertains offenders with strict punishment, but also follows
the rule of 'stringent the punishment stricter the proof". It states in every
trial the evidence should be examined keenly and should fill all the holes
regarding the doubts about false implications. This act sees the intention,
knowledge and awareness of every offender in respect to every offence.
may be strict law with serious punishment but there exists caution situated to fulfil the provision of natural justice. Conscious possession comes into play
when there is physical possession over contraband that is under the control of
the possessor and this must be coupled with the awareness of such possession.
Mere Physical possession is not sufficient to bring home the charge of
- Ashok Kumar vs. Union of India, 2002 Cri LJ 355, 2002 (3) WLN 162, 2002
(3) WLN 162.
- Inder Sain vs. the State of Punjab, 1973 AIR 2309, 1974 SCR (1) 215.
- Comprehensive classic on The Narcotic Drugs and Psychotropic Substances