Possession under NDPS law must be proved first; mere presence in a vehicle is not enough for conviction.

Possession is the foundational ingredient for liability under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, requiring proof of custody or control over the contraband before any statutory presumption can operate. Mere presence in a vehicle carrying poppy husk, without investigation into each accused's role or nexus with the goods, was insufficient to prove possession beyond reasonable doubt. The adverse inference from silence could not replace proof, particularly where no specific question on possession was put under Section 313 CrPC. Sections 35 and 54, and reliance on Section 114 of the Evidence Act, were therefore unsafe on the record, and the conviction and sentence were set aside.

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Issues: Whether the prosecution proved that the appellants were in possession of the poppy husk so as to sustain their conviction under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Analysis: Possession is the foundational ingredient for liability under Section 15. The evidence showed that one appellant was driving the truck and the others were sitting on the bags, but the prosecution did not investigate or establish the exact role of each accused or their nexus with the contraband. The mere presence of the appellants in the vehicle, without proof of custody or control over the goods, was insufficient to prove possession beyond reasonable doubt. The adverse inference drawn from their silence could not be safely substituted for proof, especially when no specific question on possession was put to them under Section 313 of the Code of Criminal Procedure, 1973. The presumptions under Section 35 and Section 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985 could not be applied without first establishing possession. The reliance placed on Section 114 of the Indian Evidence Act, 1872 was also unsafe on the record.

Conclusion: The prosecution failed to prove possession of the poppy husk beyond reasonable doubt, and the conviction under Section 15 could not be sustained.

Final Conclusion: The conviction and sentence were set aside, and the appellants were ordered to be released.

Ratio Decidendi: For a conviction under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, the prosecution must first establish possession, meaning custody or control over the contraband, before any statutory presumption is invoked.

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