Supreme Court of India
Rakesh Kumar Raghuvanshi vs The State Of Madhya Pradesh on 16 January, 2025
2025 INSC 96
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1953 OF 2014
RAKESH KUMAR RAGHUVANSHI APPELLANT(S)
VERSUS
THE STATE OF MADHYA PRADESH RESPONDENT(S)
O R D E R
1. This appeal arises from the judgment and order dated
7th May, 2013 passed by the High Court of Madhya Pradesh,
Jabalpur Bench at Indore in Crl.A.No.1213 of 1997 by which
the High Court dismissed the appeal filed by the appellant
herein and thereby affirmed the judgment and order of
conviction passed by the Trial Court for the offence
punishable under Section 8 read with Section 15 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (For
short “the NDPS Act”).
2. The case of the prosecution may be summarized as under:
(i) An ASI officer by name Musharraf Beg lodged an FIR
No.713/96 dated 30.12.1996 with the S.H.O., Police Station,
Signature Not Verified
G.R.P. Ujjain which reads thus:
Digitally signed by
RAJNI MUKHI
Date: 2025.01.22
19:38:41 IST
”Regarding registration of the crime, it is
Reason:
submitted that I, ASI M.Beg received information
from the informer while attending the duty on
29.12.96 at 22.15 o’clock that a dark complexioned
person is traveling in Bhopal Rajkot 1270 up train1
in the gallery of the bathroom at the last
compartment of General Coach, carrying three
separate cartoon packets. He is sitting on one of
them. This information was entered in General Diary
no. 2381 on 29.12.96 and to confirm the information
constable Braj Mohan was sent to summon witnesses
Rakesh and Prakash and they were made aware of the
information received from the informer. The
panchnama of the information of the information was
prepared. Headquarter of senior officials of
Railway Region Indore is in Indore. As per the
Information, on the possibility of the alteration
of article and for the confirmation of the said
information being necessary and looking at the
circumstances, the search warrant could not be
received whose panchnama has been prepared. Two
copies of the panchnama of the information of the
informer, in the situation of not receiving the
search warrant the copy of the panchnama under
section 42 of NDPS Act was sent to Superintendent
of Police Railway, Indore through constable
Dispatch rider no. 6735 of police station on
29.12.96. As per the information mentioned in
General Diary No., reached along with Head
Constable Bharat Pandey, Head Constable Pradeep
Singh, Constable Brij Mohan Singh with the summoned
witnesses, necessary materials Tarazu, baant, seal,
shellac etc to the spot at Platform no.1 of railway
station, near parcel office, near ver bridge. On
the arrival of the train, deputed accompanied force
near to the coach and train guard constable 405
Umashankar and 610 Rajendra Singh. Searched the
suspect along with the witnesses in the coach No.
91105 and on confirming the features of the suspect
before the witnesses and in his sudden attempt to
leave the coach, he was stopped with the assistance
of accompanying force. He was summoned along with
three cartoons he possessed, out of the coach.
Since, it will take time on the confirmation of the
information and the train stays for the less time.
The moment he came out with the luggage out of the
train, was asked name and address. He told his name
Rakesh son of Shankar Lal resident of Sanwal Kheda,
Tehsil and District Hoshangabad. Subsequently also
stated that at present he is living in Chhola Naka
House No.44, in the house of Kallu at Bhopal and
paying the rent of Rs 300/- per month. So, he was
informed that he is having the opium poppy husk in
three cartoons which he possessed and he is
smuggling to sell them. I have to take the search
of all three cartoons possessed by you. You could
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give your search before Magistrate or Gazetted
officer or even could be . given before me. You
could give your search to anyone. On this,
appearing Rakesh gave his consent to give the
search to me of which the panchnama of the consent
was prepared before the witnesses. Rakesh took the
body search of the force accompanying me and the
witnesses. Nothing suspected object could be found.
Thereafter, the search of the body of Rakesh was
conducted. The three cartoons were searched then
opium poppy husk was found which was smelt and
tasted to witnesses who revealed to be opium poppy
husk. Then, after this the panchnama of possessing
the suspected article, panchnama of being smelt and
tasted and panchnama of the measurement were
prepared, it was measured in parcel office which
was carried by Mithu Lal son of Satya Narayan,
Begumpura. all three cartoons and kept on the
measurement scale of parcel officer M.K.Jaiswal,
measured the cartoons measured 17 kg, 17 kg and 16
kg respectively making a total of 50 kg of poppy
husk, having the value of Rs 3500/- thus he was
found possessing these articles Illegally and on
stating of not finding in written or by any proof,
the seizure memo was prepared. The copy of the
panchnama was made. Since I was not having the seal
with my name so the action done at the place of
occurrence was affixed with the seal of police
station. The samples from the packets of the seized
Opium poppy husk where article A – 1 A – 2 B – 1 B
– 2 C – 1 and C-2 were marked and to send them to
the Forensic Science Laboratory for examination; a
sample comprising of 250 grams each were taken out
from each of the cartoons. The criminal case under
section 8/15 of NDPS Act is found on the aforesaid
action made against Rakesh at the place of
occurrence. Due to this reason, panchnama was
prepared. Thus on panchnama of the action conducted
at the aforesaid place of occurrence and as per the
details of the seizure articles of the case along
with the accused Rakesh are being produced to
police station for further action. Please do the
further action.
On the basis of the aforesaid written information
and the seizure made at the place of occurrence and
from other documents, a criminal case under section
8/15 of NDPS Act is registered and took for the
investigation.
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Action taken: Since the above report reveals
commission of offence(s) u/s 8/15 of NDPS Act—–
Registered the case and took up the investigation
or, Directed/entrusted (Name of I.O.)-ASI Beg to
take up the investigation.
13.F.I.R. read over to complainant/informant,
admitted to be correctly recorded and a copy given
to the complainant/informant, free of cost. ”
(ii) Thus it appears from the aforesaid that the appellant was
travelling on 29.12.1996 by Train No.1270, Bhopal Rajkot
Express. There was information with the Department that a young
boy was travelling with three packets of poppy husk and was
sitting in the general coach. The information was to the
extent that he was sitting near bath room alongwith three
cartons of poppy husk. It was also specified that he was
sitting on one of the packets containing contraband and the
other two were next to him. When the train, referred to above,
arrived at the platform, the raiding party identified the boy
and asked him to come out of the coach alongwith the three
cartons. The appellant herein disembarked the coach with three
cartons. He was searched and was found to be in conscious
possession of poppy husk weighing around 50 Kgs.
3. On FIR being registered the investigation commenced. At
the end of the investigation Police filed charge sheet in the
Special Court. The Special Court proceeded to frame charge for
the offence enumerated above to which the appellant pleaded not
guilty and claimed to be tried.
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4. In the Course of the trial, the prosecution examined
eleven witnesses. The prosecution also relied upon few pieces
of documentary evidence.
5. Upon closure of the recording of the evidence by the
prosecution the further statement of the appellant was recorded
under section 313 of the CrPC. In his further statement, he
stated that he was falsely implicated in the alleged offence.
He further stated that he was travelling with a valid ticket.
He was to visit his relative residing in Maninagar (Gujarat).
He was detained at Ujjain Railway Police Station (M.P.).
6. The Trial Court upon appreciation of the oral as well as
documentary evidence on record held the appellant guilty of the
alleged offence and sentenced him to undergo 10 years rigorous
imprisonment with fine of Rs.1,00,000/-. The appellant went in
appeal before the High Court. His appeal also came to be
dismissed.
7. In such circumstances referred to above, the appellant is
here before this Court with the present appeal.
8. Ms. Pragati Neekhra, the learned counsel appearing for
the appellant vehemently submitted that the Trial Court as well
as the High Court committed a serious error in holding the
appellant guilty of the offence under the NDPS Act. The
principal argument of the learned counsel for the appellant is
that there is nothing on record to indicate that the appellant
was in conscious possession of the contraband. According to the
learned counsel, when the officers asked him to come out of the
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coach with the three cartons he was left with no option but to
abide by the directions of the officers and that is how he got
down from the coach with the three cartons. According to the
learned counsel otherwise he had nothing to do with the three
cartons. The Learned counsel would submit that the search was
carried out at a public place like a railway platform. There
were many passengers in the train and the three cartons could
have belonged to any one of the passengers. In such
circumstances, according to the learned counsel the appellant
deserves to be given a benefit of doubt.
9. Learned counsel prayed that there being merit in her
appeal, the same may be allowed and the appellant be acquitted
of the charge enumerated above.
10. On the other hand, Mr. Bhupendra Pratap Singh, the
learned counsel appearing for the State submitted that no error
not to speak of any error of law could be said to have been
committed by the two Courts below in holding the appellant
guilty of the alleged offence. He would submit that there is
cogent and reliable evidence on record to indicate that the
appellant was in conscious possession of the three cartons
containing poppy husk. He further pointed out that there was a
specific information which was reduced into writing in
accordance with law that a young boy was travelling in train
referred to above and had in his possession contraband in the
form of poppy husk. Accordingly, search was undertaken and the
appellant was found to be in possession. He would submit that
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there being no merit in this appeal. The same may be
dismissed.
11. Having heard the learned counsel appearing for the
parties and having gone through the materials on record, the
only question that falls for our consideration is whether the
Courts below committed any error in holding the appellant
guilty of the alleged offence.
12. Learned counsel appearing for the appellant invited our
attention to a decision of this Court in the case of Avtar
Singh v. State of Punjab reported in (2002) 7 SCC 419.
Although the learned counsel seeks to rely upon this judgment
for the benefit of her client yet unfortunately the ratio of
the judgment or rather the dictum laid therein goes against the
appellant. The relevant observations are as under:
“The word ‘possession’ no doubt has different shades
of meaning and it is quite elastic in its
connotation. Possession and ownership need not always
go together but the minimum requisite element which
has to be satisfied is custody or control over the
goods. Can it be said, on the basis of the evidence
available on record, that the three appellants one of
whom was driving the vehicle and other two sitting on
the bags, were having such custody or control? It is
difficult to reach such conclusion beyond reasonable
doubt. It transpires from evidence that the
appellants were not the only occupants of the
vehicle. One of the persons who was sitting in the
cabin and another person sitting at the back of the
truck made themselves scarce after seeing the police
and the prosecution could not establish their
identity. It is quite probable that one of them could
be the custodian of goods whether or not he was the
proprietor. The persons who were merely sitting on
the bags, in the absence of proof of anything more,
cannot be presumed to be in possession of the goods.
For instance, if they are labourers engaged merely
for loading and unloading purposes and there is7
nothing to show that the goods were at least in their
temporary custody, conviction under Section 15 may
not be warranted. At best, they may be abettors, but,
there is no such charge here. True, their silence and
failure to explain the circumstances in which they
were traveling in the vehicle at the odd hours, is
one strong circumstance that can be put against them.
A case of drawing presumption under Section 114 of
the Evidence Act could perhaps be made out then to
prove the possession of the accused, but, the fact
remains that in the course of examination
under Section 313 Cr.P.C, not even a question was
asked that they were the persons in possession of
poppy husk placed in the vehicle. The only question
put to them was that as per the prosecution evidence,
they were sitting on the bags of poppy husk.
Strangely enough, even the driver was questioned on
the same lines. The object of examination under S.
313, it is well known, is to afford an opportunity to
the accused to explain the circumstances appearing in
the evidence against him. It is unfortunate that no
question was asked about the possession of goods.
Having regard to the charge of which appellants were
accused, the failure to elicit their answer on such a
crucial aspect as possession, is quite significant.
In this state of things, it is not proper to raise a
presumption under Section 114 of Evidence Act nor is
it safe to conclude that the prosecution established
beyond reasonable doubt that the appellants were in
possession of poppy husk which was being carried by
the vehicle. The High Court resorted to the
presumption under Section 35 which relates to
culpable state of mind, without considering the
aspect of possession. The trial court invoked the
presumption under S. 54 of the Act without addressing
itself to the question of possession. The approach of
both the courts is erroneous in law. Both the courts
rested their conclusion on the fact that the accused
failed to give satisfactory explanation for
travelling in the vehicle containing poppy husk at an
odd hour. But, the other relevant aspects pointed out
above were neither adverted to nor taken into account
by the trial court and the High Court. Non-
application of mind to the material factors has thus
vitiated the judgment under appeal.”
(Emphasis supplied)
13. In Avtar Singh (supra), some of the occupants who were
travelling in the car on being intercepted were in a position
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to escape. In such circumstances, the prosecution was unable to
identify them during the course of investigation. This Court
observed that anyone of those who made good their escape could
be the actual custodian of the contraband seized from the
vehicle. This Court further observed that the persons who were
merely sitting on the bags, in the absence of proof of anything
more, cannot also be presumed to be in possession of the
contraband seized from the vehicle. Further, this Court held
that for failure of the Trial Court to examine the accused
under Section 313(1)(b) CrPC with respect to their possession
which is the main and foremost incriminating element to attract
the offence alleged against the accused, the prosecution could
not have claimed to have established the guilt of the accused
under Section 15 of the NDPs Act beyond the reasonable doubt.
In such circumstances, the judgment of the Trial Court
convicting the accused for the offence under Section 15 NDPS
Act was reversed by this Court.
14. Thus, before the Court holds the accused guilty of the
offence under the NDPS Act, possession is something that the
prosecution needs to establish with cogent evidence. If the
accused is found to be in possession of any contraband which is
a narcotic drug, it is for the accused to account for such
possession satisfactorily, if not, the presumption under
Section 54 comes into place.
15. Section 54 of the NDPS Act being relevant in the context
on hand is extracted hereunder for convenient reference:
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“54. Presumption from possession of illicit articles.
—In trials under this Act, it may be presumed, 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
substance or controlled substance;
(b) any opium poppy, cannabis plant 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
substance or controlled substance; or
(d) any materials 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.”
16. Therefore, as envisaged by the provision itself, unless
and until the contrary is proved in trials of cases involving
offences coming within the purview of the NDPS Act, it may be
presumed that the accused has committed an offence under the
Act in respect of any articles prohibited to be possessed by
him and for the possession of which, he failed to account
satisfactorily. Therefore, it is the burden of the prosecution
to establish that the contraband was seized from the conscious
possession of the accused. Only when that aspect has been
successfully proved by the prosecution, the onus will shift to
the accused to account for the possession legally and
satisfactorily.
17. We looked into the evidence as regards possession and are
convinced that the appellant was found to be in conscious
possession of the three cartons containing poppy husk. The
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defence put forward by the appellant that he had no idea about
the three cartons and that he got down from the coach alongwith
the three cartons only because the officers asked him to come
out of the coach is something which is not palatable to us.
18. We have looked into the further statement of the accused.
We do not find any satisfactory reply or explanation as to how
come he was sitting on one of the cartons and the other two
cartons were closely placed next to him.
19. In such circumstances, Section 54 referred to above,
comes into play and the court would be justified in drawing the
presumption that the accused was in conscious possession.
20. Section 35 of the NDPS Act deals with the presumption of
culpable mental state. It states that in any prosecution under
the NDPS Act, the court shall presume that the accused had the
requisite mental state, including intention, knowledge, and
motive, unless the accused can prove otherwise. This shifts the
burden of proof onto the accused to demonstrate that they
lacked knowledge or intent regarding the possession of the
drugs.
21. Conscious possession refers to a scenario where an
individual not only physically possesses a narcotic drug or
psychotropic substance but is also aware of its presence and
nature. In other words, it requires both physical
control and mental awareness. This concept has evolved
primarily through judicial interpretation since the term
“conscious possession” is not explicitly defined in the NDPS
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Act. This Court through various of its decisions has repeatedly
underscored that possession under the NDPS Act should not only
be physical but also conscious. Conscious possession implies
that the person knew that he had the illicit drug or
psychotropic substance in his control and had the intent or
knowledge of its illegal nature.
22. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat
reported in 2000 (2) SCC 513, this Court highlighted that once
the prosecution proves physical possession, the burden shifts
to the accused to explain how he came into possession of the
contraband and prove that he was not aware of its presence or
nature. The Court ruled that a person who admits that drugs
were found in his possession must prove that he had no
knowledge of the illicit nature of the substance.
23. In Madan Lal v. State of Himachal Pradesh reported in
(2003) 7 SCC 465, this Court was dealing with a case where all
the accused persons were travelling in a vehicle when they were
nabbed and recoveries were made from them. The relevant
extracts from the said judgment are set out below:
“19. Whether there was conscious possession has to be
determined with reference to the factual backdrop. The
facts which can be culled out from the evidence on
record are that all the accused persons were
travelling in a vehicle and as noted by the trial
court they were known to each other and it has not
been explained or shown as to how they travelled
together from the same destination in a vehicle which
was not a public vehicle.
20. Section 20(b) makes possession of contraband
articles an offence. Section 20 appears in Chapter IV
of the Act which relates to offences for possession of12
such articles. It is submitted that in order to make
the possession illicit, there must be a conscious
possession.”
24. In the overall view of the matter, we are convinced that
the High Court committed no error in dismissing the appeal and
thereby affirming the judgment and order of conviction passed
by the Trial Court.
25. In view of the aforesaid, the appeal fails and is hereby
dismissed.
26. The appellant is on bail. He shall surrender within a
period of eight weeks to serve out the remaining part of the
sentence.
………………………………………………J.
[J.B. PARDIWALA]
………………………………………………J.
[R. MAHADEVAN]
NEW DELHI.
JANUARY 16, 2025.
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