Introduction In criminal law, possession is nine-tenths of the law, but under the NDPS Act, possession must be “conscious.” A frequent defense in cases involving vehicles or shared rooms is that the accused was unaware of the contraband’s presence.
Physical vs. Conscious Possession Courts have repeatedly held that mere physical presence near the contraband is not enough.
- Physical Possession: Custody of the object (e.g., sitting in a car where drugs are hidden).
- Conscious Possession: Knowledge of the nature of the contraband and control over it.
Key Precedent: Madan Lal v. State of H.P. The Supreme Court clarified that once possession is established, the burden shifts to the accused under Section 35 (Presumption of Culpable Mental State) to prove they did not know about the drugs. However, the initial burden is on the prosecution to prove that the accused had dominion over the contraband.
Practical Application If a driver is caught with passengers carrying drugs in their luggage, the driver can argue lack of “Conscious Possession” if there is no evidence linking him to the specific bag. However, if drugs are found in a hidden cavity of the vehicle, the driver/owner faces a much harder challenge rebutting the presumption of knowledge.
Conclusion “Conscious Possession” is a vital defense strategy in multi-accused cases, separating the actual trafficker from the innocent bystander.
Disclaimer: This article is for academic and informational purposes only and does not constitute legal advice. For specific case inquiries, please consult a legal professional.