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Below is a detailed analytical paper based on the judgment in Saneesh Soman Versus Narcotics Control Bureau - 2025 (7) TMI 1450 - DELHI HIGH COURT, focusing on the nuanced legal distinction between “wilful or conscious possession” and “mere possession” under the NDPS Act. The distinction between wilful possession and mere possession is an understated yet crucial demarcation in narcotics jurisprudence. The rigour of Section 37 of the NDPS Act, 1985, and the presumptions under Section 54 can drastically alter the fate of an accused. The Delhi High Court’s recent ruling in Saneesh Soman v. Narcotics Control Bureau (BAIL APPLN. 591/2025) serves as a textbook instance to understand how this differentiation operates within the realm of bail jurisprudence.
2. Factual Backdrop: The Fragile Link
Saneesh Soman was arrested when he appeared to collect a courier parcel at DTDC Kottayam, Kerala, which was found to contain 100 LSD blots (weighing 3.5 grams – a commercial quantity). However, the parcel:
Was not addressed to him.
Did not mention his phone number or address.
Was allegedly collected on instructions of a neighbour, Punan C.M. @ Robin.
Involved a tracking number sent via WhatsApp to the petitioner.
Despite his arrest, no recovery was made from his home or person, nor was there any digital, financial, or call record evidence linking him to drug syndicates.
3. Legal Distinction: Conscious Possession vs. Mere Custody
3.1 The Core of “Conscious Possession”
The NDPS Act does not penalize for mere possession. As held in Mohan Lal Versus State of Rajasthan - 2015 (4) TMI 688 - Supreme Court, Union of India Versus Mohanlal - 2016 (5) TMI 500 - Supreme Court conscious possession requires
Knowledge of the nature of the substance.
Control or dominion over it.
Similarly, in Rakesh Kumar Raghuvanshi v. State of M.P., 2025 SCC Online SC 122, the Supreme Court reiterated that knowledge of the nature and contents is essential to invoke conscious possession.
3.2 Mere Possession: The Passive Recipient
In Saneesh’s case, the following facts suggest mere possession:
No nexus to sender (“Raman Singh”) or consignee (“Varghese Kuruvilla”).
DTDC parcel pickup based solely on a neighbour’s instruction.
No prior or subsequent transaction linked to Saneesh.
Hence, the accused was, at most, a passive recipient without mensrea or animus possidendi – the intent to possess.
4. Key Judicial Observations
Justice Sanjeev Narula emphasized:
“The act of merely receiving a package, absent any material to suggest that the Applicant was aware of its illicit contents, prima facie, cannot by itself satisfy the legal threshold of ‘possession’ under the NDPS Act.”
Notably:
The alleged confessional statement under Section 67 was unsupported by any recovery or corroborative evidence.
CDRs (Call Detail Records) failed to establish the phone number allegedly used to inquire about the parcel.
The number belonged to DTDC, not the accused – indicating a critical evidentiary lapse.
5. Applicability of Section 54 NDPS: Presumption Rebutted?
Section 54 raises a presumption of culpability if a person is found in possession of narcotic drugs, unless they satisfactorily explain it.
However, in NCB v. Ali Mohammad [2009 SCC Online Del 334], and Fabian Helmchen v. State of Goa [2021 SCC Online Bom 1536], the courts stressed that:
Mere custody is insufficient.
Presumption under Section 54 arises only when prosecution establishes foundational facts of knowledge and control.
In Saneesh case, the foundational facts themselves were absent or weak – making Section 54 inapplicable at the bail stage.
6. Article 21: Prolonged Incarceration and Fundamental Rights
The Court acknowledged:
Petitioner had no criminal antecedents.
He was confined for over 2 years without trial commencement.
Cooperated with investigation, shared password, and surrendered his phone.
This led the Court to apply Article 21’s mandate on right to personal liberty and held that the twin conditions under Section 37(1)(b) stood satisfied.
7. Conclusion: The Thin Line of Criminal Intent
The case of Saneesh Soman underscores how a person’s role, if not coupled with guilty knowledge or wilful participation, may not qualify as conscious possession under the NDPS Act. Courts must carefully differentiate between:
Wilful possession – that justifies denial of bail and harsher consequences.
Mere possession – which could be innocent or non-culpable.
This decision reinforces the principle that presumption must not become persecution, and that liberty, especially under preventive detention, must be zealously guarded unless guilt is reasonably established.
Key Cases Cited with summary and its Relevance:
Summary: The Supreme Court ruled that “conscious possession” under the NDPS Act requires both knowledge and control over the contraband.
Relevance: Directly supports the argument that mere physical custody is insufficient.
Summary: Constitution Bench held that confessions made under Section 67 of the NDPS Act are not admissible as evidence unless made to a Magistrate under Section 164 CrPC.
Relevance: Cited in support of the argument that the Section 67 statement of the petitioner is inadmissible without corroboration
- NCB v. Ali Mohammad, 2009 SCC Online Del 334
Summary: The Delhi High Court emphasized that mere possession without mens rea or knowledge does not constitute “conscious possession” under NDPS.
Relevance: Used to negate the applicability of Section 54 presumptions in the absence of foundational facts.
- Fabian Helmchen v. State of Goa, 2021 SCC OnLine Bom 1536
Summary: Bombay High Court held that conscious possession cannot be inferred solely from recovery; prosecution must establish knowledge.
Relevance: Supports the petitioner’s claim of lack of knowledge of parcel contents.
- Sarvothaman Guhan v. NCB, 2023 SCC OnLine Del 5643
Summary: Pertains to discrepancies in weight of seized contraband and its evidentiary impact.
Relevance: Relied upon to show inconsistencies in reported weight (3.5g vs 2.5g) of LSD blots recovered from the petitioner.
Summary: Supreme Court stressed the importance of maintaining the integrity of seizure records and proper handling of evidence under NDPS.
Relevance: Used to highlight procedural lapses in chain of custody and recording discrepancies.
(New SC case, recent 2025 citation)
Summary: The Supreme Court clarified the concept of conscious possession as requiring both awareness and control, particularly when dealing with commercial quantity under NDPS.
Relevance: Supports prosecution’s argument but ultimately helps in clarifying the dual requirement of knowledge and control.