When A Person Is Found Alongside Carrier Of Contraband, Conscious Possession Can Be Presumed Under NDPS: Madras High Court

“Even if contraband is not seized from a person, if he is found present and associated with the principal offender, the presumption of conscious possession under the NDPS Act is attracted”, Madras High Court reiterating that mere physical proximity to a narcotic substance can attract presumption of conscious possession under Section 35 of the NDPS Act, particularly when a person is found in association with the primary possessor. Justice G. Arul Murugan, while upholding the conviction of Mohamed Hussen (A2) under Section 8(c) read with Section 20(b)(ii)(B) of the NDPS Act, reduced the sentence of imprisonment to the period already undergone and imposed a higher fine of ₹50,000 in view of the mitigating circumstances.

The Court was dealing with an appeal filed by two accused — Yasin (A1) and Mohamed Hussen (A2) — challenging their conviction by the Special Judge, II Additional Special Court for NDPS Cases, Chennai. However, during the pendency of the appeal, A1 passed away and the appeal was dismissed as abated as against him. The High Court proceeded to examine the conviction of A2 and whether the trial court was correct in drawing a presumption of “conscious possession” despite no direct recovery from him.

“The fact that the second accused was found with the first accused in possession of 1.5 kg of ganja at the scene of crime is sufficient to infer knowledge and control over the contraband”

The High Court rejected the argument that the absence of recovery from A2 absolved him of criminal liability. It observed that his presence alongside A1, who was caught red-handed with 1.5 kilograms of ganja, could not be treated as a mere coincidence.

Justice Arul Murugan noted that:

“Though the entire contraband has been recovered from the possession of A1, finding that A2 is related to A1, the trial court had convicted A2 on the ground that he had conscious possession of contraband by A1… When the presence of A2 along with A1 at the place of occurrence is established and he was arrested, then it has been rightly concluded by the trial court that he is presumed to be in conscious possession of the contraband.”

The Court invoked the statutory presumption under Section 35 of the NDPS Act, which places the burden on the accused to prove lack of knowledge or intent. In the absence of any such rebuttal or explanation from A2, the Court upheld the conviction.

“Absence of Independent Witnesses Not Fatal; Refusal Does Not Invalidate Search”

A major argument of the defence was procedural irregularity, particularly the lack of independent witnesses and the use of computer-generated arrest memos at the scene of occurrence. The Court, however, found that these objections lacked substance.

The Court recorded that:

“Refusal by independent witnesses does not vitiate the search. PW1 has clearly deposed that assistance was sought from three local persons who declined to co-operate. Merely because the arrest memos were printed in a nearby shop with the help of a laptop does not make the arrest illegal.”

On the issue of search and seizure, the Court found that procedural safeguards under the NDPS Act — including Section 50 — were duly complied with. The accused were informed of their rights, gave consent for search, and signed on the samples and seizure documents. The Court relied on the testimony of the Investigating Officers (PW1–PW4) and the chemical analysis report, holding that the prosecution had established recovery and possession beyond reasonable doubt.

“No active role, but presence enough: Sentence reduced, fine enhanced to strike balance”

The Court, while affirming the conviction, took into account the youthful age of the second accused, lack of prior criminal record, and the limited role played by him in the offence.

“Considering the mitigating circumstances that the contraband ganja… was recovered from A1 and there was no recovery from A2, he was young aged 21 years at the time of occurrence, had no other previous case against him… this Court is of the considered opinion that the sentence imposed could be modified.”

Instead of the one-year rigorous imprisonment awarded by the trial court, the High Court ordered that the period of 90 days already undergone would suffice, but enhanced the fine from ₹15,000 to ₹50,000, to be paid within four weeks, failing which A2 would undergo three months’ simple imprisonment.

“Confiscation of Vehicle Confirmed as Part of Crime Tool”

The two-wheeler used by the accused, bearing registration number TN-03-T-8068, was confirmed to be used for transporting the contraband. The Court refused to interfere with the order of confiscation, holding that the vehicle was rightly seized and forfeited under the Act.

Ultimately, the Court found no perversity or illegality in the trial court’s appreciation of facts or application of law, and only intervened on the issue of sentencing in light of fairness and proportionality.

Date of Decision: 24 November 2025