The Possession and Consumption of Narcotics: NDPS 1985

“Possession is nine points of the law” is an old English saying, which roughly means that the person who has physical control of a property is also assumed to be its owner. This statement is a truism of human nature but this also extends in some ways to the legal principles, and it is to ensure that the legitimate right of a person over their property is not taken away or disturbed. Though this assumption may also have a negative effect when the object in question is one whose possession is regulated or criminalised by the law. Situations might arise where the person in whose possession the object is found, is penalised but that person might be unaware of the object being in their possession, in that case too should the presumption of possession be there? and the person should be penalised, or some other approach must be adopted. These situations may sound remote but occur frequently, pertaining to the possession of narcotics, arms, etc. This gives rise to the question, “Whether mere possession can be criminalised, even in the absence of absolute blameworthiness”.

The focus of the discussion on the research question would revolve around the concept of possession pertaining to narcotics, for that we need to look at the primary legislation governing narcotics in India. The Narcotic Drugs and Psychotropic Substances Act,(NDPS Act) was passed in 1985 to combine and amend existing drug abuse control legislation, as well as to allow for harsher penalties, particularly for drug trafficking and a variety of other offences, and it is currently India's major drug legislation. The sections of the NDPS Act which are related to possession and its criminalisation would be discussed through their examination via case laws and then comparing it with the philosophical and theoretical foundations. When we discuss the provisions of the NDPS Act which presumes the culpability of mental state or the presumption from the possession of articles, a few questions on the justifiability or the procedural aspects might crop up, these would be addressed in the later parts of the essay.

Moving forward, the discussion would revolve around possession (and its criminalisation). The elements and the different types of possession are explained. With the help of the examination of case laws, these ‘types of possession’ would be analysed and their similarities and differences would be shown. The outcome of this examination and analysis would simultaneously shed light on the research question, and support the argument that mere possession without blameworthiness must not be criminalised. In very brief, the procedural aspect of the NDPS Act would be assessed, this is important to see how some aspects of search and seizure can alter the blameworthiness and influence the possession aspect, i.e., how a completely procedural provision which is after the alleged offence is committed, can influence the type/status of possession. In the end, the conclusion would summarise and put forth all the assertions in favour of the argument that possession must not be criminalised in the absence of blameworthiness.

Possession’s Brief Jurisprudence and Why It Is Problematic to Criminalise it.

John W. Salmond says, “In the whole range of legal theory there is no conception more difficult than that of possession”, yet goes on and in very simple words defines it as “Possession, for example, is evidence of ownership; the possessor of a thing is presumed to be the owner of it, and may put all other claimants to proof of their title.” In the legal world, it is often the definitions which seem very simple at a glance, are the ones which have vast technicalities and ambiguities in their interpretation. To understand possession, let us discuss its elements first.

 The two elements of possession are animus possidendi and corpus possessionis. In this, the ‘animus’ is the claim or the self-assertive will to exercise control over the object, this can in layman’s terms be referred to as the ‘mental element’ of possession, on the other hand, the corpus is the actual environment and fact where the claim has been realized and fulfilled, and this can be in layman’s terms be referred to as the ‘physical element’ of possession. Both elements by themselves are not sufficient; possession commences with the union of these two elements and it terminates as soon as either of them disappears. To explain this, no claim irrespective of how willful and assertive it is remains insufficient until and unless that claim has been effectively realized in fact. Along these lines, just the mere physical relation to an object is not sufficient, unless it is the form in which the person intended to fulfil and realise it. Though this might make you think that, physical possession, i.e., the corpus possessionis is always mandatory for possession to exist, here a situation arises in the ‘physical element,’ where it expands its scope of the fulfilment of realization from the point of direct physical control, this will be explained along with constructive possession.  

Possession of many items such as offensive weapons or articles used in the commission of offences is criminalized, but the difficulty arises in the case of possession of narcotics, which is precisely what we seek to explore in this essay. This difficulty also arises because when we are dealing with the criminalization of the possession of drugs, there is a clash between multiple principles. The possession and consumption of narcotics or drugs pose a grave risk to the society at large and hence the provisions governing them are made more stringent, this is a policy decision in the anticipation that more stringent provisions would result in the decrease of these offences and hence protect the society. The issue arises because in the endeavour to decrease the harmful effects to society at large, the principles of criminal law take a back seat and allow the law enforcement agencies to intervene even before any harm is committed and to convict people much more easily. “One issue which arises with this early intervention is that they may criminalize people at a point too remote from the ultimate harm, not allowing for a change of mind” and whether it diverges from the voluntariness requirement. This is one of the reasons behind not criminalizing possession in the absence of voluntariness and blameworthiness. With the help of case laws, various situations would be highlighted where the stringent provisions and early intervention are wrong.

Types of possession, and provisions pertaining to it within the NDPS Act.

It is necessary to understand since the starting that possession in fact and possession in law is different, this is also a deciding factor where the criminalization of it is in question. There are three types of possession, firstly, where possession exists both in fact and in law as well, this is the ‘perfect’ form of possession. The second case which is of most relevance to us, is where possession may exist in fact but not in law, a person might have the physical or factual control of an object but it is not recognized in the eyes of law as possession. The third case, where possession is not in fact, but in law; is the most peculiar type, here the law gives the possession of an object to a person who in fact does not have its actual physical control, this is termed as constructive possession.

The NDPS Act has in almost all the sections wherever the consumption or sale of a substance is criminalized, has also criminalized the possession of that substance. As discussed earlier, the provisions are strict and the punishment is harsh (up to the extent of death), the reason can be the ‘war on drugs’ as the media likes to call it. The burden of proof is on the accused on multiple accounts, for example, Section 35 of the NDPS Act - Presumption of culpable mental state. This section presumes the existence of a ‘culpable mental state’ (which includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact), wherever it is required to be established, it is on the accused to establish and prove that he did not have such mental state, hence creating a reverse burden of proof on the accused. Though subsection (2) of section 35 states, “…fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.” With this, a minimum standard of proof is required upon the prosecution too, they cannot simply make the allegation of possession, it has to be proved beyond a reasonable doubt. Moving to Section 54 of this act which is “Presumption from possession of illicit articles.” This section presumes that the accused has committed the crime (for the possession for which he fails to account satisfactorily), unless and until the contrary is proven. Here too, the standard is to establish beyond reasonable that the possession was conscious.

In order to keep the focus on the research question, which is limited to mere possession without blameworthiness, the first type detracts us from the discussion as the mental element and will to possess those items are there. Most of our discussion here would revolve around the second type of possession.

Possession in Fact, but not in Law.

If we look at the second case, where there is possession in fact and not in law, a new concept of “conscious possession” comes up and will be analysed with the help of a landmark case and a recent judgment. In the landmark case of Madan Lal and Ors. vs. State of Himachal Pradesh, the court made various observations on the mental and the conscious element of possession. The necessary facts in brief, of the case to understand the decision are, that multiple people were travelling in a car, and a search was conducted by the police. In the search, contraband (820 grams of charas) was found inside a metal container secured in a black bag, and it was later on alleged by one of the accused (Manjit Singh) who was driving the vehicle that it was not in his knowledge that such contraband was in this car and therefore he must not be held liable.

The court said, “It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.” This shows that just the very fact that a person was in possession of such substance(s) is not enough to attract the penal provisions but, there must be the element of knowledge or consciousness.  To say a person is ‘conscious’ of something means awareness of a fact or a state of mind which is deliberate or intended, and this is necessary to construct blameworthiness. To determine whether the person was ‘conscious’ with the examination of the fact matrix it will be culled, whether the accused could have had the requisite knowledge or not. Here in this case it was held that the accused was in conscious possession of the contraband and, him merely being a driver does not put him on a different footing. All the accused persons were known to each other, and there was no alternate explanation given by the accused on how he was travelling with them at the same time in a private vehicle. In this case, the contraband was found in the vehicle but there were multiple passengers, let us now look at another interesting situation where there was only one person, but later acquitted.

The brief facts of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat are that the accused was found with four gunny bags (containing charas) in his autorickshaw. It was his case that he had no knowledge as to the contents of the bag and was merely transporting them as per the instructions of two other persons, whom the police were unable to trace. Since the accused had admitted that the contraband was found in his auto-rickshaw only (inside the gunny bags kept), the burden of proof fell upon him to prove his lack of knowledge as to the content of the gunny bags, and to discharge the burden. The standard of proof in these cases is "beyond a reasonable doubt" as discussed above. If the Court, on an evaluation of the entire evidence, did not find a doubt of reasonable degree, that the accused had real knowledge as to the nature of the substance kept in the bags then the accused would not have been entitled to the acquittal. However, if the defence can create a strong doubt in the eyes of the judge relating to the accused's knowledge of the nature of the substance, it would have been a “miscarriage of criminal justice to convict him of the offence”, despite having such doubt existed. Though it is upon the accused to discharge the burden, it is not necessary to adduce evidence of his own when he is called upon to enter on his defence. If circumstances are appearing in the prosecution’s case or, their evidence has such a fact which can offer the Court sufficient confidence that the accused could not have had the requisite knowledge or purpose, the burden imposed on him under Section 35 of the Act would be discharged.

This reverse burden of proof might feel unjustified or even unconstitutional but in the case of Noor Aga vs. State of Punjab and Ors., the court while examining the same question made the following observations. The initial burden exists upon the prosecution and only when it stands satisfied beyond reasonable doubt, the legal burden would shift onto the accused to discharge this burden. Just because the burden of proof under certain circumstances is placed on the accused, the same, by itself would not render these provisions unconstitutional. This small discussion (restricting ourselves to only this portion of the judgment) is to highlight the fact that the apex court has unconditionally said that mere possession without knowledge must not be penalised, it is upon the prosecution first to adduce some evidence in their favour.

The ratios of these two judgements prove that in practice and application of the NDPS Act, the courts have not criminalized mere possession of a substance, until and unless the accused was consciously possessing it. In situations where it was established beyond reasonable doubt by the defence (by adducing new evidence or using the existing facts present before the court) that the accused did not have the requisite intent, the accused must be acquitted.

Possession in Law, but not in Fact – Constructive Possession

We discussed above where even though a person had physical possession, they were not penalized, but constructive possession is such that they are being penalized even without being in factual physical possession.

To analyse its definition, we may look at the judgment passed by the Supreme Court in Gunwantlal v. The State of M.P , though the object in question, in this case, is not narcotics but is firearms, the conceptual and philosophical background remains the same. The  court in this case said that, first of all the element of knowledge or consciousness of the object/possession must be there with the person it is being ascribed to. Along with this, where the person does not have the actual possession, but nonetheless has power or control over that object, this implies that his possession thereon continues despite physical possession being with someone else. This caveat and construction of possession must be there, because if this was not the case then the owner of a house who leaves an unlicensed gun in the house but is not there when it is discovered by the police may claim that he was not in possession of it, even if he had purposefully left it there when he walked out. Similarly, if he leaves the house during the day and someone hides a pistol in his house, and the police arrive and discover the pistol when he is gone, he cannot be charged with the crime unless he had knowledge of the weapon being hidden in his house.

The rationale behind criminalising this as per Salmond, is that the power to use a thing by a person is not destroyed by their voluntary absence from it, because they can go to it and take physical control of it whenever they desire. “The true test is not the physical power of preventing interference, but the improbability of any interference, from whatever source this improbability arises. Possession is the security of enjoyment, and there are other means of attaining this security than personal presence or power.” So, in simpler terms, the person can still remain in the possession of an object without being in its factual physical presence.

Can irregularities during search and seizure affect possession? This is another aspect which needs to be looked at very briefly, the NDPS Act in its section 50 lays down the procedure to be followed in the case of search and seizure. In Ashok Kumar Sharma v. State of Rajasthan since the procedure was not followed properly due to default on the part of the officers, the accused would be given the benefit under a mistake of law since the law was wrongly presented before them by the authorities. Extensive discussions were held in landmark cases of State of Punjab vs. Balbir Singh and  State of Punjab vs. Baldev Singh and Ors., on the search and seizure aspect. If the procedure as laid down is not followed properly then, the veracity of the circumstances under which the possession was found comes under great doubt and since the knowledge of possession is to be ascertained by the assessment of the facts and surrounding circumstances, it will also affect possession or its blameworthiness. Courts have gone to the extent of acquitting the accused and rejecting the evidence adduced by the prosecution on the grounds, that there were discrepancies in conducting the search.