July 2016

POSSESSION & PRESUMPTION IN THE CONTROL OF NARCOTIC SUBSTANCES ACT, 1997

BY:
NOOR ALAM KHAN ASC,
MEMBER KPK BAR COUNCIL, PESHAWAR
MEMBER EXECUTIVE SCBA OF PAKISTAN
CHAIRMAN
VOICE OF PRISONERS

The word “possess” has been used in Section 6, 12, 22, 24, 29, 32, 39, which is relating to possession of Narcotics substances. Word "possess " connotes some type of knowledge about the thing possessed by a person.[1] It is necessary to show that accused had article which turned out to be narcotic drugs. Prosecution must prove that accused is knowingly in control of something in the circumstances, which showed that he is assenting to be in control of it and it is not necessary to show in fact that accused had actual knowledge of that which he had. Knowledge is an essential ingredient of the offence as word "possess " connotes in the context of S.6 of Control of narcotic Substances Act, 1997 would be frustrated.[2] Some sort of knowledge' about the things possessed. Accused must be knowingly in control of something in the circumstances which showed that he is assenting to being in control of the same. Not necessary to show in fact that accused had actual knowledge of that which he had.[3] It is also mean as "possession with knowledge".[4] in a wider sense so as to include transport, despatch and delivery. Transportation within the country is also prohibited and the finding relating to the ownership is not required.[5] Knowledge is an essential ingredient of the offence as the word `possess" connotes in the context of S.6, possession with knowledge. Legislature could not have intended to make mere physical custody without, knowledge an offence. Possession, therefore, must be conscious possession.[6] Possession has the following kinds:-

Actual Possession

A person has possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it. More than one person can be in possession of something if each knows of its presence and has the power and intention to control it. The law recognizes several kinds of possession. A person may have actual possession or constructive possession. A person may also have sole possession or joint possession. A person who has direct physical control of something on or around his person is then in actual possession of it.

Not necessary that the driver should also be the owner of the vehicle, or that only owner of the vehicle is liable, and the driver could not be saddled with liability. Driver who is in actual possession of the vehicle and the material, is responsible; the owner of the truck could also be guilty in some cases, but not necessarily in every case. In the absence of such motive, there is no reason to discard the testimony of the officials. Evidence having gone unshaken, mere delay in sending the sample could hardly be of any importance. Case against accused persons, having been proved, they are rightly convicted and sentenced.[7]

Constructive Possession

The legal possession of an object, even if it is not in a person’s direct physical control. often used in criminal law prosecutions for possession crimes, such as possession of illegal drugs. Generally, for a court to find that a person had constructive possession of an object, the person must have had knowledge of the object, and as well as the ability to control it. For example, someone with keys to a safe deposit box may have constructive possession to the contents of that box, and the owner of a car may have constructive possession of the contents of its trunk

Possession shall mean having the controlled substance on one's person or in constructive possession including, but not limited to, constructive possession by that owner of a motor vehicle or by that driver of a motor vehicle if the owner is not present who keeps or allows to be kept in the motor vehicle a controlled substance."

The word possession as define by the Pakistani courts particularly with respect to possession of narcotics substances are that possession implies a physical capacity to deal with the things as one likes to the exclusion of everyone else and a determination to exercise that physical power on one’s own behalf. It implies domination over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity to the object.

Mere presence in the room would not be enough to connect accused with physical possession of narcotics lying on the table in the room, unless a positive evidence is led that room belonged to those persons or that they are in its constructive possession or they are holding or removing bundles, but no such evidence had been led by prosecution. Prosecutor having also not supported prosecution case, accused are acquitted.[8]

Conscious possession

Possession in the context of S.6 of the Control of Narcotic Substances Act, 1997, denoted possession with knowledge i.e., Conscious possession.[10] Possession must be Conscious and intelligent possession and not merely the physical presence of accused in proximity to the object.[11] Unless the accused proves by preponderance of probability that he did not knowingly or Consciously possess the said substance, he will be held guilty by virtue of section 29.[12] Knowledge is an essential ingredient of the offence as the word ‘possess’ connotes in the context of S.6, possession with knowledge. Legislature could ‘not have intended to make mere physical custody without, knowledge an offence. Possession, therefore, must be Conscious possession.[13] Accused is driver of the bus in question, while co-accused is its cleaner and charas is also recovered from the secret cavities of the bus. No doubt existed regarding the Conscious possession and knowledge of contraband in the case.[14] Accused are in Conscious possession of the contraband item and the prosecution having established its case of possession and transportation of the offensive material, burden had shifted upon the accused to give a legally acceptable explanation, but the position taken by them is not consistent and they had been changing their plea to their convenience.[15] Huge quantity of narcotics could not be expected to have been placed in the dicky of the car without the Conscious knowledge of the accused. Convictions of accused are upheld accordingly. [16] Unless the accused proves by preponderance of probability that he did not knowingly or Consciously possess the said substance, he will be held guilty by virtue of section 29.[17] Quantity to meet the threshold of S.9(c) of Control of Narcotic Substances Act, 1997 had not been proved by the prosecution. Such doubt, regarding the quantity of narcotics recovered from the 'Conscious possession' of accused, due to lack of proof, should go in favour of the accused.[18] Unless the accused proves by preponderance of probability that he did not knowingly or Consciously possess the said article. Without such proof accused will be held guilty by virtue of S.29 of the Act.[19] Mere presence of accused, at the time of occurrence without any knowledge and in absence of Conscious possession over contraband of accused could not be made basis of his conviction.[20] Possession in the context of S.6 of the Control of Narcotic Substances Act, 1997, denoted possession with knowledge i.e., Conscious possession. Accused had admitted his presence in the truck at the time of incident and had failed to disprove his possession of “Charas” as required under S.29 of the said Act. Accused thus, would be presumed to be guilty of the offence. Conviction and sentence of accused are upheld accordingly.[21] Huge quantity of narcotics could not be expected to have been placed in the dicky of the car without the Conscious knowledge of the accused. Convictions of accused are upheld accordingly, but the sentence of imprisonment for life awarded to each accused under S.9 of the Control of Narcotic Substances Act, 1997, is reduced to five years’ R.I. in circumstances.[22]

Possession must be Conscious and not merely the physical presence of accused in proximity to the object. Identification of recovered material as heroin powder is also stated by witnesses to be stone like material. Officials of Narcotics Force entered into official premises in joint possession of many officials/officers of Department concerned. Evidence showed that most of properties found lying in said Almirah are case properties of the cases, trial wherein had either proceeded before competent Courts of law or are still pending. All such facts had clearly indicated that accused are neither in exclusive use of Almirah nor in exclusive possession of recovered material which are alleged to be in their possession. Prosecution, having failed to prove its case against accused, impugned judgment of conviction and sentence awarded to accused by Trial Court, is set aside and accused is acquitted of charge and is released.[23]

Nothing is on record to show the ownership of the contraband recovered from the secret cavities of the vehicle. Co-accused is not connected with the offence as Conscious possession, knowledge and ownership are not proved. Co-accused could not be convicted on the available evidence, his appeal is accepted. Judgment of conviction recorded against him is set aside, in circumstances.[24]

Case of lady accused is distinguishable and she would stand at par to the other lady accused who is acquitted by the Trial Court with the observation that probably she had no Conscious knowledge of the narcotic being carried in the vehicle by her co-accused; mere fact that car which is used for the crime, belonged to son-in-law of the said lady accused and she is also travelling in the said car, would not be sufficient to suggest that she had Conscious knowledge of narcotics in the car and consequently, the conviction and sentence awarded to the lady accused by giving her benefit of doubt.[25]

Direct possession

Case of co-accused is that there is no evidence against him as he is neither present with accused at the time of recovery of alleged narcotic nor any contraband had been recovered either from his direct possession or on his pointation. Accused are acquitted of the charge levelled against them and are set at liberty.[26]

Alleged contraband material is not recovered from the direct possession of accused person, but same is recovered from secret cavities of the motorcar driven by co-accused. Accused persons, no doubt are apprehended at the spot while seated in the vehicle, but no evidence had been brought forth by the prosecution that they are in conscious knowledge of the narcotics stashed in the secret cavities of the car. Accused are admitted to bail, in circumstances.[27]

Recovery of heroin from the accused had been witnessed by the officials of Anti‑Narcotic Force who had supported the same in their statements made under S.161, Cr.P.C. Laboratory test report in respect of the samples of the recovered material is in positive. Recovery of the contraband heroin is effected not only from the direct possession of the accused but also on their pointation from under the rear seat of the car. High Court, however, directed the Trial Court to conclude trial within four months failing which the accused would be at liberty to move application before the said Court for their release on bail.[28]

Presumption

Under provisions of S.29 of Control of Narcotic Substances Act, 1997 presumption would be that a person who is found in possession of narcotics, had committed offence.[29] Firstly prosecution has to establish the fact that narcotic drugs are recovered from the possession of accused. If prosecution proves recovery of contraband from constructive custody of accused, then burden of proof lies on accused to prove that contraband recovered is not in his conscious knowledge.[30] Presumption of possession of illicit articles is there unless person prosecuted rebuts such presumption.[31] If case is of possession of narcotic drug, then prosecution is under obligation to prove that narcotic drug had been recovered from conscious possession of accused.[32] Prima facie, sole duty lay on the shoulders of prosecution to show the recovery of the contraband articles from accused; and in case of proving the factum of recovery, responsibility would shift on the shoulders of accused persons, in view of S.29 of Control of Narcotic Substances Act, 1997 to prove the fact that they had no concern or connection in recovery of contraband material or no contraband material is recovered from their possession.[33] Prosecution is not absolved from its primary duty to prove its case against accused beyond doubt. When prosecution is discharged of its such duty, then accused charged under Control of Narcotic Substances Act, 1997, should bring some susceptible evidence to substantiate his plea of innocence.[34] Duty had been cast upon the court under S.29 of Control of Narcotic Substances Act, 1997 to presume in a trial that accused had committed the offence, unless contrary is proved.[35] Onus lay upon accused to prove his unawareness about narcotic substance found in his possession.[36]

In order to raise such a presumption in law, the initial burden continues to be on the prosecution and it is only when the prosecution has successfully discharged its burden of proof that the onus would shift on the accused to rebut the said presumption which the law has raised.[37] Narcotic Substances Act, 1997, as a Special Law, is enacted mainly to curb the menace of narcotics in the country. One of the main striking features provided in the Act, which is different from the general principles of safe administration of criminal justice, is that onus to prove the guilt of accused had not been placed entirely on the prosecution, but on the accused to prove his innocence. Legislature had cast a presumption in favour of the prosecution, which had to be rebutted by accused to prove his innocence. Prosecution could not be totally absolved of his obligations; and duty of initially establishing a 'prima facie' case of recovery of contraband from conscious possession of accused; and only after the said initial burden, is discharged by the prosecution, that onus would shift upon accused to prove his innocence.[38] Primary duty of the prosecution is to prove the case against accused beyond reasonable doubt, but after discharging its burden, if accused would take plea in defence, it is statutory burden upon the accused under S.29 of the Control of Narcotic Substances Act, 1997 to discharge the same through cogent evidence. Prosecution is supposed to establish that accused had some direct relationship with the narcotic drugs, or had otherwise dealt with the same. If the prosecution proved the detention of the article or physical custody of it, then the burden of proving that accused is not knowingly in possession of the articles is upon him. Practical difficulty of the prosecution to prove something within the exclusive knowledge of accused must have made the legislature think that if the onus is placed on the prosecution, the object of the said Act would be frustrated. By virtue of S.29 of Control of Narcotic Substances Act, 1997, prosecution had only to show by evidence that accused had dealt with the narcotic substances or had physical custody of it, or directly concerned with it, unless accused proved by preponderance of probability that he did not knowingly or consciously possessed the article. Without such proof, accused would be held guilty by virtue of S.29 of Control of Narcotic Substances Act, 1997.[39] Duty upon the court has been cast under S.29 of Control of Narcotic Substances Act, 1997 to presume in the trial that accused has committed an offence under Control of Narcotic Substances Act, 1997, unless contrary is proved. Firstly prosecution has to establish the fact that narcotic drugs are secured from the possession of accused. If prosecution proves recovery of narcotics from physical custody of accused, then burden of proving that he is not knowingly in possession of the article is upon the accused.[40]

Section 29 of Control of Narcotic Substances Act, 1997 cast duty upon the court to presume in a trial under the Act that accused had committed the offence under that Act, unless contrary is proved. If the case is of possession of narcotic drugs then prosecution had to first establish the fact that the narcotic drugs are secured from the possession of accused, and the court is required to presume that accused is guilty, unless accused proved that he is not in possession of such drugs. Prosecution is supposed to establish that accused had some direct relationship with narcotic drugs or had otherwise dealt with it and if retention of the article or physical custody of it is proved then the burden of proving that accused is not knowingly in possession of the article is upon him. Practical difficulty of the prosecution to prove something within the exclusive knowledge of accused, must have made the legislature think that if the onus is placed on the prosecution, the object of Control of Narcotic Substances Act, 1997 would be frustrated. Knowledge is an essential ingredient of the offence as the word "possession" connoted in the context of S.6 of Control of Narcotic Substances Act, 1997, "possession with knowledge". Legislature could not have intended to make mere physical custody without knowledge of offence, therefore "possession" must be conscious possession. By virtue of S.29 of Control of Narcotic Substances Act, 1997 the prosecution had only to show by evidence that accused had dealt with the narcotic substance or had physical custody of the same; or directly concerned with it, unless accused would prove by preponderance of probability that he did not knowingly or consciously possess the article. Without such proof, accused would be held guilty by virtue of S.29 of Control of Narcotic Substances Act, 1997.[41]

[11]. 2006 M.L.D 183 : 2006 PCr.LJ 58

[20]. 2005 Y.L.R 605 + 2011 PCrLJ 90