The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 and what is ‘conscious possession’ of drugs?

The Narcotic Drugs and Psychotropic Substances Act, 1985, commonly referred to as the NDPS Act, is an Act of the Parliament of India that prohibits a person the production/manufacturing/cultivation, possession, sale, purchasing, transport, storage, and/or consumption of any narcotic drug or psychotropic substance. The Act extends to the whole of India and it applies also to all Indian citizens outside India and to all persons on ships and aircraft registered in India.

The Narcotics Control Bureau was set up under the act with effect from March 1986.

Background

India had no laws related to narcotics until 1985. Cannabis and its derivatives (marijuana, hashish/charas and bhang) were legally sold in India until 1985. Consumption of cannabis was not seen as socially deviant behaviour, and was viewed as being similar to the consumption of alcohol. Ganja and charas were considered by upper class Indians as the poor man’s intoxicant, although the rich consumed bhang during Holi.

The United States began to campaign for a worldwide law against all drugs. However, India opposed the move, and withstood American pressure to make cannabis illegal for nearly 25 years. American pressure increased in the 1980s, and in 1985, the Rajiv Gandhi government enacted the NDPS Act, banning all narcotic drugs in India.

Conscious Possession of drugs under NDPS Act

The simple meaning of conscious is being aware of and possession means the state of having, owning, or controlling something.

The NDPS Act itself does not use the term ‘conscious possession’. The term has its origin from the Supreme Court judgements which feel that the term possession under the NDPS Act should mean conscious or mental possession and not just physical possession.

For example, if a delivery partner is caught delivering a package containing illegal drugs, he/she will not be held liable for the offence.

‘Possession’ consists of two elements- one, the physical control and second the intent. Courts have drawn this element of mental state from S.35 of the NDPS Act which deals with the presumption of mental state of accused.

For instance, if two or more people are in a car carrying a large quantity of drugs can all the people be said to have “conscious possession” of the narcotics or can only one person be charged?

Section 35 of the NDPS Act says there can be a presumption of a “culpable mental state”. That then pushes the onus of proving his or her innocence onto the accused person.

Recent Case: Aryan Khan, Arbaaz Merchant & others

The two friends were arrested at a terminal when they were about to go on a cruise ship party. Khan, Merchant, and several others were detained under laws “related to possession, consumption and sale of illegal substances.” The charges against Khan include purchase, possession and use of banned substances, the Narcotics Control Board (NCB) had said.

Although no possession was found from accused Aryan Khan, six gms of charas was found from accused two his friend Arbaaz Merchant of which Aryan had the knowledge and thus it can be said that it was in conscious possession of both the accused,” the judge said in the detailed order.

The NCB built its case on the fact that Merchant had charas in his shoe and that the accused allegedly admitted to investigators that they intended to use the drug for “consumption and enjoyment.”

References

telegraphindia.com

livelaw.in

legislative.gov.in

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