Possession under NDPS Act

Source: Delhi High Court  

Why in News? 

Recently, Justice Sanjeev Narula  held that conscious possession" under the Narcotic Drugs and Psychotropic Substances Act ,1985 (NDPS) requires the accused to have knowledge of the illicit nature of the substance, and merely collecting a package—without evidence of such knowledge—does not meet the legal threshold of possession. In the absence of incriminating material or recovery from the accused personally, bail was justified. 

• The Delhi High Court held this in the matter of Saneesh Soman v. Narcotics Control Bureau (2025). 

What was the Background of Saneesh Soman v. Narcotics Control Bureau (2025) Case? 

• The Narcotics Control Bureau (NCB) apprehended Gajender Singh at a DTDC Courier Office in Delhi while he was booking a parcel, recovering 15 LSD paper blots and later 650 additional LSD blots from his residence.  
• Singh's confession under Section 67 of the NDPS Act led to the arrest of Shainu Hatwar, who revealed Sarabjeet Singh as the supplier of psychotropic substances from Jaipur.  
• The NCB team searched Sarabjeet Singh's premises and seized 9,006 LSD blots, 2.232 kilograms of Ganja, and ₹4,65,500 in cash, with Singh confessing to dispatching four separate consignments containing LSD blots.  
• The NCB successfully intercepted these consignments, including one destined for Kottayam, Kerala (courier W60803432), by laying a trap at the DTDC courier office. Saneesh Soman arrived to collect this parcel and was apprehended, with the package containing 100 LSD paper blots weighing 3.5 grams.  
• Soman was arrested for offences under Sections 8(c) read with Sections 22 and 29 of the NDPS Act, and charges were subsequently framed under Sections 22(c) read with 29 of the NDPS Act. 

What were the Court’s Observations? 

• The Court noted that the 3.5 grams of LSD recovered exceeded the prescribed threshold of 0.1 gram, qualifying as commercial quantity under the NDPS Act and invoking Section 37's statutory embargo. The allegations against Soman were distinguishable from other co-accused as nothing was recovered from his person, nor was his residence searched, with the contraband linked only to the parcel he collected.  
• The Court observed critical discrepancies in the prosecution's case, noting that the phone number allegedly used by Soman to contact the DTDC office actually belonged to the DTDC office itself, and no conclusive determination was made despite his phone being seized. 
• Soman was neither the consignee nor was the parcel addressed to his residence, and despite his cooperation in providing his phone password for forensic analysis, the NCB failed to investigate his claims about acting on behalf of his neighbour Punan C.M. @Robin. 
•  The Court found no independent evidence such as CDRs, financial transactions, or digital communications linking Soman to the trafficking network, with the prosecution relying primarily on his alleged confession under Section 67. 
• The Court concluded that merely receiving a package without awareness of its illicit contents cannot satisfy the legal threshold of "possession" under the NDPS Act, and granted bail noting Soman's lack of criminal antecedents and two-year satisfactory conduct in custody. 

What is Possession under the NDPS Act? 

• Possession under the NDPS Act requires 'conscious possession', which means the accused must have both physical control over contraband and knowledge of its existence and illicit nature. 
• Conscious possession comprises two critical components - actual physical custody or control over the narcotic substance, and mental awareness or knowledge that the substance in possession is contraband. 
• The accused must have personal knowledge of the existence of the contraband and possess the intent to maintain control or exercise dominion over the illicit substance. 
• Simple physical custody without knowledge of the nature of the substance or without the intention to control it does not constitute possession under the NDPS Act. 
• Once conscious possession is established, Section 54 of the NDPS Act creates a rebuttable presumption that the accused has committed an offence, shifting the burden to the accused to prove innocence. 
• Under Section 54, an accused can escape liability by providing a satisfactory account for the possession of narcotic drugs, psychotropic substances, or related materials found with them. 
• The conscious possession requirement ensures that the legal framework aligns with constitutional principles under Articles 20(3) and 21, preventing conviction based solely on inadvertent or unknowing physical custody. 
• Courts require corroborative evidence beyond confessional statements to establish conscious possession, including circumstantial evidence such as call records, financial transactions, or other material linking the accused to the contraband.