A bare perusal of the NDPS Act may reveals that there is no mention of the term ‘Conscious Possession’ in the act whatsoever, yet several judgments have been laid down by various High Courts and the Apex Court laying emphasis on the same.
The expression ‘Possession‘ has more than one meaning. In its literal sense it means “the state of having, owning, or controlling something.” Meaning thereby the physical control over something, over which a person has the power of control. As long the has something in his possession it is under his personal protection. The person cannot be said to have possession over anything if he does not have the dominion of power over it. For example, a person cannot be accused to be in possession of drugs if the same is found in his open wrist while he fast asleep.
The second requisite being ‘consciousness‘ of having control over something, consciousness is relative to the mental element, which involves a person who is aware that he is in possession of a particular thing or an object. Thereby meaning, consciousness is a state of mind which is deliberate or intended.
The principle of Conscious Possession applies under NDPS Act, which stipulates that an accused should have physical control over the stipulated contraband/drug and such possession should followed by mental knowledge i.e. awareness of being in control and possession of the same. Unless the possession is followed by the requisite mental element i.e. Conscious Possession and not merely limited to the custody without awareness of the nature of such possession, conviction under NDPS Act will not be sustained.
Criminal law follows the maxim “Actus Non Facit Reum Nisi Mens Sit Rea” which stipulates that no person shall not be held guilty of commission of an offence without guilty intention. The maxim allows the Court not to punish a person without the requisite intent ‘Mens Rea’ to commit a crime, NDPS Act is also bound by the same principle as it does not allow the punishment of a person without the proven intention or knowledge of commission of the act.
The High Court of Rajasthan has held in its landmark judgment 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 possessed….”
Therefore, in every trial pertaining to NDPS Act, it is to be first ascertained whether the accused had the knowledge or intention to commit the offence.
CONSCIOUS POSSESSION OF DRUGS UNDER THE NDPS ACT
A bare perusal of the NDPS Act may reveals that there is no mention of the term ‘Conscious Possession’ in the act whatsoever, yet several judgments have been laid down by various High Courts and the Apex Court laying emphasis on the same.
The expression ‘Possession‘ has more than one meaning. In its literal sense it means “the state of having, owning, or controlling something.” Meaning thereby the physical control over something, over which a person has the power of control. As long the has something in his possession it is under his personal protection. The person cannot be said to have possession over anything if he does not have the dominion of power over it. For example, a person cannot be accused to be in possession of drugs if the same is found in his open wrist while he fast asleep.
The second requisite being ‘consciousness‘ of having control over something, consciousness is relative to the mental element, which involves a person who is aware that he is in possession of a particular thing or an object. Thereby meaning, consciousness is a state of mind which is deliberate or intended.
The principle of Conscious Possession applies under NDPS Act, which stipulates that an accused should have physical control over the stipulated contraband/drug and such possession should followed by mental knowledge i.e. awareness of being in control and possession of the same. Unless the possession is followed by the requisite mental element i.e. Conscious Possession and not merely limited to the custody without awareness of the nature of such possession, conviction under NDPS Act will not be sustained.
Criminal law follows the maxim “Actus Non Facit Reum Nisi Mens Sit Rea” which stipulates that no person shall not be held guilty of commission of an offence without guilty intention. The maxim allows the Court not to punish a person without the requisite intent ‘Mens Rea’ to commit a crime, NDPS Act is also bound by the same principle as it does not allow the punishment of a person without the proven intention or knowledge of commission of the act.
The High Court of Rajasthan has held in its landmark judgment 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 possessed….”
Therefore, in every trial pertaining to NDPS Act, it is to be first ascertained whether the accused had the knowledge or intention to commit the offence.
Written:
Advocate Rohit Dhankar
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