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Explained | What is ‘conscious possession’ of drugs?

Bollywood actor Shah Rukh Khan’s son Aryan Khan.   | Photo Credit: PTI

The story so far: On Wednesday, a special court in Mumbai denied bail to Aryan Khan, son of Bollywood actor Shah Rukh Khan, even though the Narcotics Control Bureau (NCB) did not find any drugs on him during his arrest on October 3 after a raid on a cruise ship off Mumbai. The arrest of Aryan, along with several others, has highlighted the stiff nature of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, and the nuances that go into the detection and seizure of narcotics, and how the matter is investigated and prosecuted.

Why was Aryan Khan denied bail?

The court rejected his bail application on the ground that he had “conscious possession” of drugs. He has been accused under the same sections of the NDPS Act as his friend Arbaaz Merchant and model Munmun Dhamecha, on whom six grams and five grams of hashish, respectively, were allegedly found. The court presumed that Aryan had “intention, motive, knowledge” over the contraband said to be found on Merchant and Dhamecha. This means that the onus is now on him to prove otherwise.

Besides “conscious possession”, the 23-year-old is accused of consumption, attempt to commit offences under the Act, abetment/conspiracy and offences under Section 8(c).

What does the law say?

Section 35 of the Act recognises the ‘presumption of culpable mental state’. Possession need not be physical and could be ‘constructive’. The Supreme Court defines the word ‘conscious’ as “awareness about a particular fact” -- a state of mind which is deliberate or intended. That is, a person can still have power and control over the article in question, while another to whom physical possession is given holds it, subject to that power or control. An illustration of ‘conscious possession’ is if a person keeps his gun in his mother’s flat, which is safer than his own home, he must be considered to be in possession of the firearm.

The liability is on the accused to dispel the court’s presumption of his culpable mental state. Section 54 of the Act also allows for a similar presumption in the possession of illicit articles.

What quantity of drugs will attract penal provisions?

The NDPS Act treats drug offences very seriously and penalties are stiff. Penalties depend on the quantity of drugs involved. The Centre has notified the individual small and commercial quantities for each drug. For hashish, the commercial quantity is 1 kg. A small quantity of cocaine is two grams and commercial quantity is 100 grams; heroin is five grams and 250 grams respectively. For methamphetamine, the corresponding figures are two grams and 50 grams; and for MDMA, 0.5 gram and 10 grams.

Under the Act, abetment and criminal conspiracy and even an attempt to commit an offence under the Act attracts the same punishment as the offence itself. Preparation to commit an offence attracts half the penalty. Repeat offences attract one and half times the penalty and in some cases even the death penalty.

Consumption of drugs like cocaine, morphine and heroin attracts rigorous imprisonment up to one year or fine up to Rs. 20,000 or both. For other drugs, the punishment is imprisonment up to six months or fine up to Rs. 10,000 or both. Addicts volunteering for treatment enjoy immunity from prosecution.

Production, manufacture, possession, sale, purchase, transport, import inter-state, export inter-state or use of narcotic drugs and psychotropic substances in small quantities involve rigorous imprisonment up to six months or fine up to Rs.10,000 or both. More than small quantity but less than commercial quantity involves rigorous imprisonment up to 10 years and fine up to Rs. 1 lakh. Those activities involving commercial quantity of drugs attract rigorous imprisonment of 10 to 20 years and fine of Rs.1 lakh to 2 lakh.

What is the Centre’s role in implementing this law?

This law has “stringent” provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. These include forfeiture of property derived from, or used in, illicit traffic. The law has been made in adherence to international conventions, including those of the United Nations, on narcotic drugs and psychotropic substances.

Human rights advocates have criticised the NDPS Act as a severe law which leans towards incarceration rather than bail. Section 37(1) mandates that an accused person should not be granted bail unless the court has reasonable grounds to believe that he is not guilty and that he is not “likely to commit any offence while on bail”. The provision is on the same terms as anti-terror laws.

Every offence under the Act is cognisable, which means they are serious enough for the police to arrest without a warrant. Section 2 of the Act shows a long list of prohibited activities which amount to “illicit traffic”. These include cultivation of coca plant to production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances offences under the law. It also includes financing, abetting, conspiring, harbouring, and even letting out premises to persons engaged in illegal activities under the Act.

The power given to the Central government to “take measures for preventing and combating abuse of and illicit traffic in narcotic drugs, etc” is wide. The Act declares that the “Central government shall take all such measures as it deems necessary or expedient for the purpose of preventing and combating abuse of narcotic drugs and psychotropic substances and the illicit traffic”.

The statute allows the Centre and States to empower officers, who are above the rank of peon, sepoy or constable in central excise, narcotics, customs, revenue intelligence or any other department to act on “personal knowledge” or third-party information given in writing, with the power to enter, search, seize and arrest without warrant or authorisation.

What is the NCB’s role?

One of the Directive Principles in the Constitution (Article 47) directs the state to act against narcotic activities injurious to health. The NDPS Act mandates the formation of a central authority to exercise its powers and functions under the statute. The government constituted the NCB on March 17, 1986 to coordinate with other departments and ministries to fight illicit traffic in drugs and drug abuse.


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Printable version | Nov 30, 2021 6:16:39 AM | https://www.thehindu.com/news/national/explained-what-is-conscious-possession-of-drugs/article37138520.ece

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