By TIOL News Service

NEW DELHI, APR 21, 2015: THE accused Mohan Lal was arrested on a charge of theft of 10 kgs of opium from a Court malkhana. While in custody, it was informed by him that he had broke open the lock of the malkhana of the Court and stolen the opium and kept it in a white bag and concealed it in a pit dug by him underneath a small bridge. His disclosure statement has been brought on record. The accused-appellant led to discovery in presence of independent witnesses. The bag and cloth were taken out by the accused digging the pit and the bag contained 10 kgs and 200 gms of opium as is reflected from seizure memo was recovered.

The trial court convicted the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act 1985 (for short, 'the NDPS Act') and sentencing him to suffer rigorous imprisonment for 10 years and pay a fine of Rs. 1 lakh, in default, to suffer one year simple imprisonment.

The principal submission of the counsel for the appellant is that the appellant cannot be convicted and punished under the NDPS Act when admittedly the theft of contraband substance was prior to coming into force of the NDPS Act, for the FIR was lodged prior to coming into force of the NDPS Act. The counsel would submit that offence of possession of contraband substance also commenced prior to coming into force of NDPS Act as the FIR would clearly reveal that the theft was committed on the intervening night of 12th/13th November, 1985, whereas the NDPS Act came into force on 14.11.1985.

The Supreme Court observed,

The term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion.

The actus of possession is not punishable with retrospective affect. No offence is created under Section 18 of the NDPS Act with retrospective effect. What is punishable is possession of the prohibited article on or after a particular date when the statute was enacted, creating the offence or enhancing the punishment. Therefore, if a person is in possession of the banned substance on the date when the NDPS Act was enforced, he would commit the offence, for on the said date he would have both the 'corpus' and 'animus' necessary in law.

On the date the NDPS Act came into force, the accused-appellant was still in possession of the contraband article. Thus, it was possession in continuum and hence, the principle with regard to continuing offence gets attracted.

The Supreme Court upheld the conviction and dismissed the appeal of the convict.

(See 2015-TIOL-80-SC-NDPS)