Court’s Decision
The Kerala High Court, presided by Justice A. Badharudeen, allowed the criminal appeal of an accused convicted under Sections 20(b)(ii)(A) and 25 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, setting aside the trial court’s judgment and acquitting the appellant.
The Court found that the prosecution had failed to prove conscious possession or ownership of the premises where contraband was allegedly found, observing that mere recovery of narcotic substance from a premises does not automatically fix liability on its occupant without cogent proof of possession or control.
“Suspicion, however strong, cannot take the place of proof. The prosecution must establish conscious possession and knowledge beyond reasonable doubt,” the Bench held .
Facts
The prosecution case was that on 14 March 2018, the Sub-Inspector of Police conducted a raid at a house in Kottayam district and allegedly recovered 1.2 kilograms of ganja from the bedroom of the accused. The accused was arrested, and the seized items were taken into custody.
The prosecution contended that the accused was the owner and resident of the house where the contraband was discovered and therefore presumed to be in possession of the narcotics.
After trial, the Special Court convicted the accused under Section 20(b)(ii)(A) and sentenced him to rigorous imprisonment for one year and a fine of ₹10,000.
Challenging the conviction, the accused filed an appeal before the High Court, asserting that the prosecution had failed to prove conscious possession, as the property belonged to another person, and that no independent witness had been examined to establish exclusive control of the premises .
Issues
- Whether the prosecution proved that the accused was in conscious possession of the contraband found in the house.
- Whether the recovery of the contraband, in the absence of proof of ownership or tenancy, could be attributed to the accused.
- Whether the investigation and seizure complied with Sections 42, 43, and 50 of the NDPS Act.
Petitioner’s Arguments
The counsel for the appellant argued that the entire seizure was fabricated, and no evidence established that the accused owned or occupied the premises. The mahazar witnesses did not support the prosecution case during trial, and the investigating officer failed to produce any documentary proof linking the accused to the property.
It was further contended that the procedural safeguards under Sections 42 and 50 of the NDPS Act were not followed — there was no written authorization for the search, and the accused was not informed of his right to be searched in the presence of a gazetted officer or magistrate.
The defence emphasized that the chain of custody of the seized material was not properly proved, as the samples were sent to the chemical examiner with unexplained delay, creating a reasonable doubt regarding tampering .
The appellant relied on Supreme Court precedents including State of Rajasthan v. Parmanand (2014) 5 SCC 345 and Mohan Lal v. State of Punjab (2018) 17 SCC 627, to contend that strict compliance with procedural safeguards is mandatory in NDPS cases, failing which the conviction cannot stand.
Respondent’s Arguments
The Public Prosecutor argued that the contraband was recovered from the house in which the accused was found sleeping during the raid. The accused did not produce any document or witness to rebut the presumption under Section 35 and Section 54 of the NDPS Act, which allow the court to presume culpable mental state and possession once recovery is established.
It was submitted that the evidence of PW3 (Sub-Inspector) and PW5 (Seizure Witness) was consistent and credible. The seized articles were properly sealed and produced before the Magistrate without delay. The prosecution asserted that procedural compliance was duly proved through the contemporaneous seizure mahazar and forwarding memo .
The State thus urged that the conviction be upheld, arguing that the mere non-examination of independent witnesses does not render the evidence of police officers unreliable when corroborated by records.
Analysis of the Law
The Court examined the statutory framework of the NDPS Act, emphasizing that the burden of proof on the prosecution is higher than ordinary criminal cases due to the stringent penalties involved.
Referring to Section 35 (Presumption of culpable mental state) and Section 54 (Presumption from possession), the Court observed that these presumptions apply only when possession is proved beyond reasonable doubt. The prosecution must first establish the foundational fact of possession, failing which the presumption cannot be invoked.
The Court further observed that “conscious possession” involves both physical control and knowledge of the substance’s existence and nature. The prosecution failed to prove either element.
“To establish possession, it is not enough to show that contraband was found in a place associated with the accused; it must be shown that he had knowledge and control over it,” the Court reiterated .
The Court also scrutinized procedural compliance, holding that the absence of written authorization and non-compliance with Section 50 rendered the search legally doubtful.
Precedent Analysis
The Court relied on several landmark judgments to reinforce its findings:
- Mohan Lal v. State of Punjab (2018) 17 SCC 627 – Held that when the investigating officer and complainant are the same person, the investigation is vitiated due to bias. The ratio applied as PW3 was both the informant and investigating officer.
- State of Rajasthan v. Parmanand (2014) 5 SCC 345 – Reiterated that procedural safeguards under Sections 42 and 50 are mandatory; any violation vitiates the trial.
- Noor Aga v. State of Punjab (2008) 16 SCC 417 – Established that prosecution must prove conscious possession beyond reasonable doubt before invoking statutory presumptions.
- Union of India v. Bal Mukund (2009) 12 SCC 161 – Clarified that recovery from a shared or public space cannot, by itself, prove possession.
- Ashok Kumar Sharma v. State of Rajasthan (2013) 2 SCC 67 – Held that independent corroboration is necessary when seizure witnesses turn hostile .
Applying these precedents, the Court concluded that the prosecution had failed to establish exclusive possession, conscious control, and procedural compliance.
Court’s Reasoning
Justice Badharudeen observed that the entire case rested on presumption rather than proof. No document or witness confirmed that the accused owned or rented the house. The prosecution also failed to produce the property records or examination of the landlord, which could have corroborated occupation.
The Court found material contradictions between the testimony of the investigating officer and the seizure witnesses. It held that such inconsistencies, coupled with the absence of corroborative evidence, destroyed the credibility of the prosecution’s narrative.
“The prosecution cannot shift the burden to the accused unless it first establishes possession. The law requires strict compliance with procedural safeguards in NDPS cases, failing which the benefit of doubt must go to the accused,” the judgment stated .
The Court also criticized the delay in forwarding the samples to the chemical examiner, noting that there was no explanation for the gap between the seizure and dispatch. This delay, the Court held, created reasonable doubt about tampering or substitution.
Conclusion
The High Court allowed the appeal, set aside the conviction and sentence, and acquitted the appellant of all charges under Sections 20(b)(ii)(A) and 25 of the NDPS Act. The Court directed that the bail bond of the accused be cancelled and fine, if any, refunded.
It reiterated that courts must remain cautious in NDPS prosecutions, given the draconian consequences of conviction, and that procedural safeguards are not mere formalities but essential guarantees of fairness and justice.
“The prosecution’s failure to establish possession and compliance with statutory requirements compels this Court to acquit the accused,” the Bench concluded .
Implications
This judgment reinforces vital principles in NDPS jurisprudence:
- Conscious possession must be proved through evidence, not inference.
- Procedural safeguards under Sections 42, 43, and 50 are mandatory and non-compliance vitiates conviction.
- Delay in sending samples without explanation raises serious doubt about tampering.
- Presumptions under Sections 35 and 54 arise only after possession is firmly proved.
The ruling strengthens procedural fairness and guards against wrongful conviction under the NDPS Act.
FAQs
1. What does “conscious possession” mean under the NDPS Act?
It means that the accused must have both knowledge and control over the contraband. Mere recovery from a place associated with the accused is insufficient.
2. Can conviction be based solely on police witnesses?
Not if independent witnesses are available but not examined, or when police evidence lacks corroboration and consistency.
3. What happens if procedural safeguards under Sections 42 and 50 are violated?
The trial is vitiated, and the accused is entitled to acquittal as per Supreme Court precedents.
