Conscious Possession Need Not Be Admitted—It Can Be Inferred From Circumstances and Conduct: Madras High Court Upholds Sentence in 150 Kg Ganja Case

“Statement Under Section 67 NDPS Act Remains Admissible If Recorded Before Tofan Singh Ruling”—In a detailed and precedent-sensitive judgment Madurai Bench of the Madras High Court affirming the conviction of three men for trafficking 150 kilograms of ganja under the NDPS Act. Justice K.K. Ramakrishnan observed that the seizure was legally compliant, the accused were in conscious possession of the contraband, and their statements under Section 67 of the NDPS Act, being recorded before the landmark ruling in Tofan Singh, were admissible. The Court declared, “Tofan Singh does not have retrospective application. Statements recorded before the decision remain valid and admissible.”

Conscious Possession Inferred from Circumstance, Not Denials

The defense tried to escape liability by suggesting an unidentified third party had placed the ganja in the vehicle without the accused’s knowledge. The Court dismissed this narrative, holding, “When 150 kg of ganja is recovered from a car in which all three accused were present, the inference of conscious possession is irresistible.”

Referring to Section 35 and 54 of the NDPS Act, the Court reiterated the presumption of culpable mental state and possession unless rebutted. “The explanation offered by the accused that the car had broken down and someone else placed the ganja is not only unsupported but inherently improbable,” the judgment noted.

Admissibility of Section 67 Statements and Tofan Singh

A central issue in the appeal was whether the confessional statements made under Section 67 of the NDPS Act could be relied upon post-Tofan Singh. The defense claimed they were inadmissible. But the Court ruled unequivocally:
“The decision in Tofan Singh delivered on 29.10.2020 does not apply retrospectively. Statements recorded prior to this date remain admissible in evidence.”

Relying on the doctrines of prospective overruling articulated in Golak Nath v. State of Punjab, ECIL v. Karunakar, and Sonu v. State of Haryana, the Court observed that legal changes cannot upset concluded trials or trials in progress unless explicitly held to be retrospective.

The Court stated, “There is no declaration in Tofan Singh that its ruling would affect past cases. Hence, Section 67 statements recorded before that date remain fully admissible and can support a conviction.”

Procedural Safeguards and Compliance Under NDPS Act

The defense also raised objections about alleged non-compliance with Sections 42 and 52A of the NDPS Act. These arguments were methodically dismantled. Justice Ramakrishnan held that typed copies of the information, timely submitted to a superior officer, fulfill the mandatory requirements of Section 42 under the standards laid down in Karnail Singh v. State of Haryana.
“The law does not insist on a handwritten record when a typed record sent within the prescribed time exists and is corroborated by testimony,” the Court clarified.

As for Section 52A, which relates to proper storage and handling of seized contraband, the Court adopted the reasoning of the Supreme Court in Bharat Aambale and Kashif, stating:
“Substantial compliance is sufficient. Where seizure is immediate, contraband is produced before magistrate, and stored in a secure godown, minor technical lapses do not vitiate trial.”

Conspiracy and Attempt: Sections 28 and 29 of NDPS Act

Though acquitted under Sections 25 and 27(A), the appellants were convicted under Sections 28 and 29 for attempt and conspiracy to commit drug trafficking. The Court emphasized that “each section under the NDPS Act constitutes a distinct offence, and acquittal under one does not preclude conviction under another.”

The joint travel, volume of narcotics, and statements recorded clearly showed planning, coordination, and intent. The Court remarked, “Conspiracy can be proved not only through direct evidence but also from the cumulative effect of proven facts and circumstances.”

The judgment reinforces the seriousness with which courts view narcotics offences and the importance of respecting procedural safeguards without letting hyper-technicality override substantive justice. The Court concluded:
“Once recovery is proved and statutory presumptions under Sections 35 and 54 arise, the burden lies on the accused to rebut. No such rebuttal has been established here.”

This ruling not only upholds the trial court’s 10-year sentence for each accused but also marks a decisive judicial stance on the limited retrospective applicability of Tofan Singh and the independent maintainability of Section 67 confessions recorded prior to it.

Date of Decision: 15 May 2025