It is rightly said that Drugs are the adversaries of motivation and courage and when we fight against drugs, we are fighting for the forthcoming events. Taking this statement into consideration and India being a signatory to the UN Single Convention on Narcotic Drugs, 1961, The Convention on Psychotropic Substances, 1971 and The Convention against Illicit Traffic of Narcotic Drugs and Psychotropic Substances, 1988, India came to a consensus to pass Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS ACT) to curb the drug menace in India by bringing into force the rigorous law in the form of this act. Recently, Aryan Khan, the son of Bollywood star, Shahrukh Khan was denied bail by the special NDPS Act who was alleged to have the consumption of drugs in cruise ship drug case and on the contrary, his judicial custody and of the others in connection was extended till October 30. The special court held that though no drug material was found with Aryan Khan and the co-accused, Arbaaz Merchant, the former would not be entitled to bail on account of ‘conscious possession’ of drugs. So a vivid discussion would be made further on the concept of ‘Conscious Possession’ of Drugs.
A BRIEF INTRODUCTION OF NDPS ACT
NDPS Act is, in itself, a stringent law that determines offense and the quantum of punishment according to the amount of illicit drugs being caught (either small or commercial quantity). Since the offenses committed under the act constitute a crime, it works on the principle that there should be physical and mental/conscious possession and consumption of drugs. The most startling fact about this ferocious act is that it works against the principle of natural justice which treats an accused innocent until proven guilty, NDPS Act works in contradiction to the principle where it treats an accused guilty until proven innocent.
NDPS Act provides a provision of central authority to be maintained for the application of this act and examination of the felonies committed under this statutory provision, and the governing institution for the same is the Narcotics Control Bureau (NCB) which upholds Article 47, a Directive Principle Of State Policy (DPSP), which directs the government of the day (union/state) to act against narcotic activities injurious to health. Section 2 of NDPS Act, 1985 talks about illicit drug possession, transfer, and other parameters and enlists a long list of prohibited activities which are punishable according to the provisions of this act.
FUNDAMENTAL DEFINITION OF ‘CONSCIOUS POSSESSION’
The term ‘conscious possession’ has not been explicitly mentioned in NDPS Act keeping it apart from the term ‘possession’, but various judicial enactments from the Supreme Court and High Courts have evolved the term ‘conscious possession’ according to the needs and circumstances of the respective case. According to Section 35 of NDPS ACT, 1985:
(1) In any prosecution for a felony under this Act which requires a culpable state of mind of the accused, the Court shall presume the presence of such state of mind but it shall be a defense for the defendant to prove the fact that he had no such state of mind concerning the act charged as an offense in that prosecution. In this section, the culpable state of mind includes intention, motive knowledge of a fact, and belief in, or reason to believe, a fact.
(2) For this section, a 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 possibility.
Thus, we can infer that conscious possession means a mental state of possession that is bound to be considered along with physical possession of the illicit material. Just like in criminal law, ‘Actus Reus’ and ‘Mens Rea’ are two essential ingredients to constitute a criminal offense, the same goes for NDPS ACT where physical, well as mental possession of drugs, are essential elements to constitute an offense under the same law. Eg: If a cab driver travels unknowingly of the drugs kept in the car and if he is caught along with the same, then not only physical possession of drugs will have to be proved but the mental state of the accused used behind committing the act will also have to be proved, rather the ‘conscious possession’ of the drugs by the accused will have to be evidenced.
JUDICIAL PRECEDENTS ON CONSCIOUS POSSESSION
Various judicial pronouncements have been made on the said term and all of them are interconnected but differ based on the facts and conditions of the case. One of the landmark cases as far as the term ‘Conscious Possession’ is the case of Dharampal Singh v. the State of Punjab. In this case, the co-accused was driving a car that was found to be secreting 65 kg of opium. The court took cognizance of the fact that the automobile was not a public carriage vehicle and thus it could not be said that the passenger was not in conscious possession of the substances recovered. The court further said that once possession is established, the court can presume that the accused had a culpable state of mind and has committed the offense. Similarly, the case of Solabkhan Gandhkhan Pathan and another v. State of Gujarat upheld the validity of ‘conscious possession’ where the accused was just a traveler in an autorickshaw that was carrying illicit drugs. The court held that since the suspect neither had the physical possession nor had the preconceived notion/motive to commit an offense under the prescribed statutory provision, the accused was acquitted, and ultimately, physical as well as mental/conscious possession was held to have been concurrent to constitute an offense under NDPS Act.
Furthermore, in the case of Madan Lal and Anr v. State of Himachal Pradesh, the court held that until physical possession is coupled with the mental state of mind, and the possession has been made without the cognizance of the nature of possession, the same act and the alleged person who would have been accused of the above actions would not be held liable under Section 20 of the NDPS Act. Section 20 contains punishment for infringement about cannabis plants or their constituents. Hence, it has time and again been established by the courts that physical possession needs to be coupled with the mental proprietorship of illicit drugs or psychotropic constituents.
The court in the same case even proclaimed that the expression ‘possession’ is a polymorphous term that assumes different colors in different contexts. Thus, it can be inferred that the term ‘conscious possession’ is subjective and needs to be dealt with sincerity and precaution depending upon the facts and conditions of the case.
NDPS Act though it does not explicitly mention the expression ‘conscious possession’ and only takes into account the term ‘possession’ throughout the act, various judicial enactments have laid the definition and the scope of ‘conscious possession’ of drugs as has been reiterated by the special NDPS court in Aryan Khan’s cruise ship drug case. Even the term can be comprehended or inferred from various provisions of this act. But considering all the facts, the same provisions makes it cumbersome and precarious for the accused as he is treated guilty until proven innocent, and according to Section 54 of NDPS Act, the liability is on the defendant to dissipate the court’s presumption of his culpable mental state/conscious possession.
Hence, the provisions of the NDPS Act that consists of conscious and physical possession as well as other attributes need to be enacted by the administrative machinery judiciously and with utmost care and precaution, and the courts should on the breakdown of the law, deal with the case sincerely and equal justice should be provided to the innocents as there remains a vital principle of law that an accused is innocent until proven guilty. Not only this, even the regulatory bodies like NCB and other central agencies ought to deal with cases with utmost care and precaution.
Author(s) Name: Yash Singh (Chanakya National Law University, Patna)
 Narcotic Drugs and Psychotropic Substances Act 1985
 Ibid s 2
 Ibid s 35
 Dharampal Singh v. State of Punjab  9 SCC 608
 Solabkhan Gandhkhan Pathan and another v. State of Gujarat  13 SCC 608
 Narcotic Drugs and Psychotropic Substances Act 1985, s 54