Conscious possession under NDPS Act upheld where contraband was recovered from gunny bags, not personal search.

Under the NDPS Act, possession is not limited to physical custody; it may be actual or constructive, but it must be conscious possession, meaning awareness of the contraband. Once physical possession is shown, the statutory presumption applies and the accused must rebut it. On the stated facts, the accused was found sitting atop gunny bags containing poppy husk and failed to displace the presumption, so conscious possession was established and the conviction was sustained. The safeguard governing personal search was held inapplicable because the recovery was from gunny bags, not from the person, so the conviction was not vitiated.

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Issues: (i) whether the appellant was in conscious possession of the contraband so as to sustain conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985; (ii) whether non-compliance with the safeguards relating to personal search vitiated the conviction.

Issue (i): whether the appellant was in conscious possession of the contraband so as to sustain conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985.

Analysis: Possession under the Act is not confined to bare physical custody; it may be actual or constructive, but it must be conscious possession, that is, possession with awareness of the nature of the article. Once physical possession is shown, the statutory presumption under the Act operates and the person in possession must rebut it. On the facts, the appellant was found sitting atop gunny bags containing poppy husk, and no material was shown to displace the presumption or to establish that the possession was innocent or unconscious.

Conclusion: The appellant was held to be in conscious possession and the conviction was sustained.

Issue (ii): whether non-compliance with the safeguards relating to personal search vitiated the conviction.

Analysis: The safeguard invoked applies to the personal search of a person and does not extend to the search of bags, containers, vehicles, or premises. The recovery in the present case was from gunny bags and not from the person of the appellant. The earlier decision relied upon by the appellant was distinguished on its facts and did not assist him.

Conclusion: The safeguard regarding personal search had no application and the conviction was not vitiated.

Final Conclusion: The conviction and sentence were upheld and the appeal was dismissed.

Ratio Decidendi: Under the Narcotic Drugs and Psychotropic Substances Act, 1985, once possession of contraband is established, conscious possession may be presumed unless rebutted, and the safeguard relating to personal search does not apply to recovery from bags or containers.

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