1. Conviction under Section 20(b) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, following recovery of contraband from a room. (Para 1 , 2 )
Back
Next 
1999 Supreme(SC) 1017
SUPREME COURT OF INDIA
A.P.Misra : K.T.Thomas
Ismailkhan Aiyubkhan Pathan: Mustafakhan Abdulkhan Pathan: Dhanpal Singh B.Thakur
Versus
State Of Gujarat
Case No. : 1704 of 1996
Date of Decision : 9/14/99
Mere presence of an individual in a premises where contraband is found does not constitute legal possession. No statutory presumption exists under the NDPS Act or the Evidence Act to infer possession solely from a person's presence at the location.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20(b) and 29 - Evidence Act - Section 114 - Possession of contraband - Mere presence of accused in a room where narcotic substance is found - Whether sufficient to establish possession - No statutory provision for drawing presumption that a person present at a particular place shall be presumed to be in possession of narcotic or psychotropic substance - No presumption under Section 114 of the Evidence Act can be drawn merely because persons were present at the spot. (Para 8)
Facts of the case:
Police conducted a raid on a room possessed by a third party based on information regarding illicit trafficking. Upon entering, several persons were found present in the room. A gunny bag containing a narcotic substance was recovered from a corner of the room. The trial court and the High Court convicted the accused, with the High Court observing that the accused failed to explain their presence in the premises at odd hours, leading to the inference that they were in possession of the premises and the substance found therein.
Findings of Court:
The court found that there was no evidence to show that any of the accused were dealing with narcotic drugs, had made any confession, or had actual or constructive possession of the room. The room was possessed by a person who was neither an accused nor a witness, and no neighbors supported the claim that the accused had a connection with the article in question.
Issues: Whether the mere presence of the accused in a room possessed by another person, where contraband was found, is sufficient to fasten liability for possession under the Act.
Ratio Decidendi: The court ruled that mere presence in a room does not equate to possession of the contraband found therein. There is no statutory presumption under the Act or the Evidence Act that allows the court to presume possession based solely on the presence of a person at the scene. The burden of proof lies with the prosecution to establish actual or constructive possession, and the High Court erred in placing the burden on the accused to explain their presence.
Result: Appeals allowed; conviction and sentence set aside; appellants acquitted.
Legal Category Hierarchy
Table of Contents
2. Whether mere presence in a room where contraband is found, without evidence of possession or dealing, is sufficient to sustain a conviction. (Para 3 , 4 , 7 )
3. Mere presence in a room possessed by another, without evidence of dealing or constructive possession, is insufficient to prove guilt. (Para 4 , 5 , 6 , 9 )
4. No statutory presumption exists that presence at a location implies possession of narcotic substances, nor does Section 114 of the Evidence Act support such an inference. (Para 8 )
5. Conviction and sentence set aside; appellants acquitted. (Para 10 )
6. Does mere presence in a room where narcotics are found establish possession?
No. Mere presence in a room possessed by another, without evidence of dealing, confession, or actual or constructive possession of the premises, is insufficient to sustain a conviction for possession of narcotic substances. (Para 4 , 5 , 6 )
7. Is there a legal presumption that a person present at a place is in possession of found narcotics?
No. There is no statutory provision for drawing a presumption that a person present at a particular place is in possession of narcotic or psychotropic substances, nor can such a presumption be drawn under Section 114 of the Evidence Act. (Para 8 )
(1) THERE were 6 accused before the Additional Sessions Court at Ahmedabad to face the trial for the offence under Section 20(b) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"). The Sessions Judge convicted 5 out of them and acquitted the 6lh man Indrajitsing Shivpalsing. The remaining 5 were convicted under the aforesaid sections and each of them was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs 1,00,000. All the convicted persons preferred an appeal before the High Court of Gujarat. A Division Bench of the High Court confirmed the conviction and sentence and dismissed their appeal. It appears that 2nd accused Saeed Suleman Shah has accepted the verdict of the High Court and he did not bother to come to this Court but the remaining convicted persons filed these appeals by special leave, as per separate special leave petitions.
(2) THE summary of the prosecution case is the following: PW 7 Inspector of Police of Crime Branch in the Vigilance Squad got some sleuth information on 6-5-1991 that illicit trafficking was going on in the room on the 1st floor of a building which was in the possession of one Nasir. He also got information that the said Nasir had kept a stock of "charas" and was dealing with the same through his servants. On the strength of the aforesaid information PW 7 along with other police personnel reached the said building for the purpose of catching the culprits. He called out the name of Nasir but none came out holding that name. However, when he entered the room he found all the 6 accused persons therein. He found a gunny bag being kept in the corner of the room. It was opened and the substance therein was tested with the help of Shri B.N. Dave, who came by that way (that person is said to be an expert attached to the Forensic Science Laboratory). Mr Dave conducted an "on-the-spot scientific test" and proclaimed that the substance was "charas".
(3) IT is unnecessary for us to go into the other evidence because we will assume that whatever PW 7 has said is correct and the rest of the evidence for the prosecution had only supported the version of PW 7. But the question is how the appellants can be fastened with the liability for possession of the contraband article wrapped in the gunny bag which was kept in the room.
(4) THERE is no evidence that anybody had seen that any one of the accused was dealing with narcotic drugs. There is also no evidence to show that any one of them had admitted either through a confession or otherwise of any incriminating role. Nor is there evidence that the accused persons, who were found sitting in the room, had possession of the room, actual or constructive. It is the prosecution case that the said room was in the possession of Nasir. But that Nasir is not an accused in this case. He was not examined as a prosecution witness to disclose as to how the accused persons happened to be in the room. None of the neighbours supported the prosecution case that any one of the accused had a connection with the article in question.
(5) THUS, we are left with only a modicum of evidence as against the accused, which only shows that they were present in the room which was in the possession of one Nasir and that the said room contained a gunny bag with the narcotic substance "charas".
(6) WE are unable to sustain the conviction of the offence under Section 20(b) read with Section 29 of the Act as for any one of the appellants on the strength of the aforesaid evidence. It is too insufficient to bring home the guilt of the appellants.
(7) IT appears that the High Court put the burden on the appellants to explain as to how they were present in the room. This is what the High Court has observed:
"IN the present case, at odd hours of the night when the premises was raided, all the accused were present and have not explained as to how and why and since whe
