Conscious possession under NDPS can be inferred from recovery circumstances, while Section 313 prejudice and witness credibility remain decisive.

Possession under the NDPS Act includes custody or control, and once surrounding circumstances establish possession, the statutory presumptions on conscious possession may apply. Recovery of opium from the dicky of a car, together with the accused's failure to explain the circumstances, is treated as sufficient material for conscious possession. Omission in the Section 313 examination is material only if it causes real prejudice or failure of justice; where the incriminating circumstances were put to the accused and explained, no vitiation arises. Non-examination of independent witnesses does not by itself invalidate search and seizure if official witnesses are credible and public witnesses were unavailable.

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Issues: (i) Whether recovery of opium from the dicky of a car driven by one accused and occupied by another established conscious possession attracting conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985; (ii) whether omission to frame the accusation of conscious possession in examination under Section 313 of the Code of Criminal Procedure, 1973 vitiated the conviction; (iii) whether absence of independent witnesses at the time of search and seizure rendered the recovery unreliable.

Issue (i): Whether recovery of opium from the dicky of a car driven by one accused and occupied by another established conscious possession attracting conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985.

Analysis: Possession under the Act includes custody or control and, once possession is shown, the statutory presumptions under Sections 35 and 54 operate. The Court distinguished cases involving public transport vehicles or situations where several other occupants were present and the custodian of the contraband could not be identified. Here, the contraband was recovered from the dicky of a car not shown to be a public transport vehicle, and the accused offered no satisfactory explanation for the possession. The circumstances were sufficient to establish conscious possession.

Conclusion: The finding of conscious possession was upheld and the conviction was sustained in favour of the Revenue.

Issue (ii): Whether omission to frame the accusation of conscious possession in examination under Section 313 of the Code of Criminal Procedure, 1973 vitiated the conviction.

Analysis: The purpose of Section 313 is to give the accused an opportunity to explain incriminating circumstances, and omission is material only if it causes failure of justice. The circumstances showing recovery of opium from the car dicky and the link with the accused were put to them, and their explanation was recorded. The Court held that the essential accusation was sufficiently brought to their notice and no prejudice was caused.

Conclusion: The conviction was not vitiated by any defect in the Section 313 examination and the contention was rejected.

Issue (iii): Whether absence of independent witnesses at the time of search and seizure rendered the recovery unreliable.

Analysis: The Court held that non-examination of independent witnesses does not by itself discredit the prosecution when the official witnesses are found trustworthy and an attempt to secure public witnesses had been made but none was available. The recovery evidence was otherwise reliable.

Conclusion: The search and seizure were not invalidated on this ground.

Final Conclusion: The appeals failed on all grounds, and the conviction and sentence were maintained.

Ratio Decidendi: In prosecutions under the Narcotic Drugs and Psychotropic Substances Act, 1985, once possession of contraband is established from the surrounding circumstances, the statutory presumptions apply and the accused must satisfactorily explain the possession; a Section 313 omission vitiates the conviction only when it causes real prejudice or failure of justice.

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