Recovery Of Drugs On Disclosure Statement Does Not Prima Facie Show Conscious Possession Of Contraband: J&K High Court

Post By 24law
February 28, 2025

Pranav B Prem

In a significant ruling, the Jammu and Kashmir High Court has held that a statement leading to the discovery of contraband is not sufficient to prima facie establish conscious possession of the concealed material. The court emphasized that mere possession of narcotic substances will not constitute an offence unless it is coupled with knowledge of what is being possessed.

A division bench comprising Justice Atul Sreedharan and Justice Rajesh Sekhri observed that "The Memorandum under Section 27 of the Evidence Act if considered in the manner as is canvassed by the learned counsel for the Union of India, the same would set to naught the constitutional protection of the right against self-incrimination as is protected by article 20(3) of the constitution. Besides, this right protected by the constitution also echoes as one of the basic tenets of criminal law which provides that no man shall be compelled to inculpate himself of a crime, as enshrined in the Latin maxim ‘nemo tenetur seipsum accusare’."

Section 27 of the Evidence Act & Conscious Possession

The court clarified that the statement of an accused under Section 27 of the Evidence Act is only relevant to the extent of the recovery of an artefact connected to the crime and "is not a confession in law with reference to the inculpatory part of the memorandum under Section 27 of the Evidence Act."

The bench further elaborated on the significance of informed consent in self-incriminatory statements, stating, "A confession must reflect informed consent on the part of its maker fully conscious of the consequences of giving an informed consent, for the confession to be accepted as voluntary. Merely asking the accused whether he is making the confession of his free will without any coercion, is inadequate unless, the accused is also made fully aware of the consequences which shall befall upon him for making such a confession."

The court held that the accused must be fully aware of the degree and extent of punishment he may receive for the offence and must also be made aware that he could lose his right to appeal against a conviction based on a confession. "This constitutionally and legally protected right may be waived by the accused, but the same must be in a manner which is acceptable to law as the said right is precious and its waiver by the accused is fraught with dire consequences for his liberty and, depending upon the nature of the crime, his life itself."

Right To Legal Counsel Before Confession

The court emphasized the importance of legal counsel before making a confessional statement, observing that "To make the right against self-incrimination effective, it is additionally required that the accused should have access to his counsel before making any confession. Where the accused is indigent, then a lawyer must be made available through legal aid. If the accused refuses the right to counsel altogether, it must be so recorded by the Magistrate and only thereafter proceed to record the confession." To ensure transparency, the court directed that "the name and enrolment number of the counsel shall be recorded so that the entire process can later be verified."

Case Background

The case arose when the appellant was denied bail by the trial court in a matter registered under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). According to the prosecution, the appellant’s brother handed him a packet containing 3 kg of heroin, which he then concealed in his house. The contraband was later recovered from the house based on the disclosure statement made by the appellant. The prosecution heavily relied on the memorandum recorded under Section 27 of the Evidence Act and argued that the appellant was in conscious possession of the contraband.

However, the court questioned the reliance solely on the disclosure statement and noted, "This Court put forward a question to the learned counsel for the Union of India that besides his 27 statement what prima facie evidence was in the possession of the prosecution to show the mens rea of the appellant that he was in conscious possession of the contraband? As mere possession will not be considered as an offence unless it was coupled with the knowledge of what was being possessed." The prosecution conceded that apart from the disclosure statement, "there is no independent evidence to establish, prima-facie, the mens rea of knowledge being possessed by the appellant herein with regard to the material he had concealed."

Bail Granted Due to Lack of Materials to Show Conscious Possession

Taking into account the submissions and the material placed on record, the court ruled in favor of the appellant, stating, "Taking into consideration, the argument put before this Court and the material placed on record, undisputed by the Union of India, and on a purely prima facie standard of appreciation, this Court is of the opinion that the appeal be allowed." The court granted bail to the appellant subject to the furnishing of a personal bond of ₹1.00 lakh and one surety of the like amount to the satisfaction of the trial court. Additionally, the appellant was directed to mark his attendance before the Station House Officer (SHO) on specified dates and was prohibited from leaving the Union Territory of Jammu & Kashmir without prior permission of the trial court.