Contraband-Presumption of culpable mental state - Unless the accused have been given the opportunity to prove that he had no such mental state as presumed under S. 35 or that he had satisfactorily accounted for the possession which was being presumed against him under section 54, the respective presumptions cannot be raised against the accused.
Contraband-Conviction - Unless accused is able to prove to the contrary, it would be presumed that he has committed an offence under the Act.
Precedents - Only provide guidelines and are not binding on individuals cases - A judgment may be applicable in one case while it may not be applicable and clearly distinguishable in another
Proof of fact - A fact is said to be proved only when the Court believes it to exist beyond a reasonable and not merely when its existence it established by a preponderance of probability.

K.S.Garewal, J.

1. The question that has been referred to the Full Bench for decision is regarding the correct meaning of "possession" in the context of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). Under what circumstances and in what manner is the presumption of "culpable mental state" to be raised under Section 35 of the Act. Furthermore, under what circumstances and in what manner is the court to presume that the accused committed an offence, in respect of possession of any drug, the possession of which he fails to account satisfactorily. This presumption being raised under Section 54 of the Act.

Section 35 reads as under :-

"Presumption of culpable mental state - (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation - In this section "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe a fact.

(2) For the purpose of 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 probability".

Section 54 reads as under :-

"Presumption from possession of illicit articles - In trials under the Act, it may be presumed, until (unless ?) and until the contrary is proved, that the accused has committed an offence under this Act in respect of - (a) any narcotic drug or psychotropic substances or controlled substances;

(b) any opium poppy, cannabis plain or coca plant growing on any land which he has cultivated;

(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substances or controlled substance; or

(d) any material which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance; or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured,

for the possession of which he fails to account satisfactorily".

2 In the present case Kashmir Singh and Karam Singh were travelling in truck PJC 1494. The truck was intercepted at 5.00 A.M. on September 1, 1991 by S.I. Rachhpal Singh of Police Station Samana. At that time Kashmir Singh was driving the truck while his companion Karam Singh was sitting by his side. The truck was carrying 110 bags of poppy husk.

3. Learned Additional Sessions Judge, Patiala vide his judgment dated July 13, 1999 found both the accused guilty under Section 15 of the Act and sentenced them to undergo rigorous imprisonment for 12 years and to pay a fine of Rs. 1.00 lac and in default of payment of fine to further undergo rigorous imprisonment for one year.

Criminal Appeal No. 407-DB of 1999 has been filed by Kashmir Singh while Criminal Appeal No. 408-DB of 1999 has been filed by Karam Singh.

4. The question of law which we have been called upon to decide can be best understood by using illustrative examples and what better example can there be than the present case in which two men travelling in a truck were stopped by the police and on search it was found that they were using the truck to transport a huge quantity of poppy husk. According to Section 54, in trials under the Act, it may be presumed unless and until the contrary is proved that the accessed has committed an offence under the Act for the possession of which he fails to account satisfactorily.

5. In addition to the above in any prosecution for an offence under the Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state. In defence the accused shall have to prove that