Proof of Conscious Possession Shifts Burden to Accused Under NDPS Act: Kerala HC

Statutory presumptions of a culpable mental state and possession of illicit articles solidify the prosecution's case once the fundamental fact of conscious possession is established, effectively shifting the evidentiary burden to the accused to prove innocence. The High Court of Kerala reaffirmed that under the Narcotic Drugs and Psychotropic Substances Act, 1985, the reverse burden of proof is constitutionally valid and necessitates the accused to establish a lack of mental state by a preponderance of probability.

A Single Judge Bench of Justice A. Badharudeen heard an appeal challenging the conviction of an individual found in possession of an intermediate quantity of brown sugar. The Court examined whether the Special Court for Narcotic Drugs and Psychotropic Substances Act, 1985 Cases, Vatakara, was justified in its findings regarding the recovery of 10.120 grams of the manufactured drug from the appellant.

Strict Adherence to Search and Seizure Protocols

The Court noted that the Sub-Inspector of Police (PW8) had complied with all statutory mandates. Specifically, the search was conducted in the presence of a Gazetted Officer (PW7), an Excise Circle Inspector, as requested by the accused, fulfilling the requirements of Section 50. The Court found that the chemical analysis report (Ext.P7) confirmed the seized substance was brown sugar, and the evidence regarding recovery remained unshaken during cross-examination.

The Court has following directions:

"The order suspending sentence and granting bail to the accused stands vacated, with direction to the appellant to appear before the special court forthwith to undergo the sentence, failing which the special court is directed to execute the sentence, without fail."

The Court, in its reasoning, observed: "...as per Section 35 of the NDPS Act, culpable mental state is a matter of statutory presumption. Thus, once the prosecution establishes conscious possession of the contraband, the burden shifts to the accused to prove otherwise. Vide licet, when the prosecution discharges its burden, it is for the accused to prove that he had no such mental state with respect to the act charged as an offence in that prosecution."

Background

The case originated from an incident on December 14, 2011, when police apprehended two individuals at a bus stand. The appellant was found carrying 10.120 grams of brown sugar in a plastic cover tucked at his waist. The Trial Court convicted him under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, sentencing him to two years of rigorous imprisonment and a fine of ₹50,000.

In the appeal, the appellant's counsel initially challenged the compliance of Sections 42 and 50 but later conceded that the evidence showed these requirements were met. The appellant then sought leniency in sentencing. The High Court, relying on the precedent in Noor Aga v. State of Punjab, emphasized that while the reverse burden is valid, the prosecution must first establish the recovery. Finding no merit in the challenge to the conviction or the sentence, the Court dismissed the appeal and directed the appellant to surrender.

Case Details:
Case No.: CRL.A NO. 24 OF 2016
Case Title: Abdurahman V. State Of Kerala
Appearances:
For the Petitioner(s): SHRI.SUNNY MATHEW, Advocate
For the Respondent(s): P K SAJEEV, Senior Public Prosecutor

Source: 2026 CaseBase(KER) 24972