The case is based upon the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter called as “the NDPS Act”), that prohibits a person to produce/manufacture/cultivate, possess, sell, purchase, transport, store, and/or consume any narcotic drug or psychotropic substance. And the offenses falling under Section 27 of the NDPS Act is a non-bailable offense.

In the present case, the appellant was held as an accused of keeping contraband, 48kgs 200gm of Cannabis (Ganja). The investigation officer identified the appellant as the owner of the house according to the voter list entry of 2008. But, the appellant claimed that the possession of the house was transferred to the co-accused i.e., Gokul Dangi on 12.06.2009. Ghasiram, the village chowkidar was the best person in the know of the ownership and possession of the house but he was examined. The appellant and the village chowkidar themselves identified the accused house to the police when it came to the village for search and seizure & both witnessed in the panchnama for breaking open the lock to the house when the contraband was recovered. The entries in the village panchayat records with regard to ownership of the house had not been investigated.

Sections used in the case

  1. Prohibition of certain operations

No person shall-

(a) cultivate any coca plant or gather any portion of coca plant; or

(b) cultivate the opium poppy or any cannabis plant; or

(c) produce, manufacture, possess, sell, purchase, transport, ware-house, use, consume, import inter-State export inter-State import into India, export from India or transship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of license, permit or authorization also in accordance with the terms and conditions of such license, permit or authorization:

Provided that, and subject to the other provisions of this Act and the Rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State, and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf.

  1. Punishment for contravention in relation to cannabis plant and cannabis.

Whoever, in contravention of any provision of this Act or any rule or order, made or condition of license granted thereunder,-

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,-

(i) where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees;

(ii) where such contravention relates to cannabis other than ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

  1. Presumption of culpable mental state.

(1) In any prosecution for an offense under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defense for the accused to prove the fact that he had no such mental state with respect to the act charged as an offense in that prosecution.

Explanation.- In this section “culpable mental state” includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.

  1. Offenses to be cognizable and non-bailable

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,-

(a) every offense punishable under this Act shall be cognizable;

(b) no person accused of an offense punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offense and that he is not likely to commit any offense while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973, or any other law for the time being in force on granting of bail.]

  1. Presumption from possession of illicit articles.

In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offense under Chapter IV in respect of-

(a) any narcotic drug or psychotropic substance;

(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;

(c) any apparatus specially designed or any group of utensils specially adapted for the manufacture of any narcotic drug or psychotropic substance; or

(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance, or any residue left of the materials from which any narcotic drug or psychotropic substance has been manufactured, for the possession of which he fails to account satisfactorily.


The appellant was convicted under Section 8C read with   Section   20(b)(ii)(c) of the NDPS Act, subjecting him to a sentence of 10years of rigorous imprisonment with a default stipulation. The apex court granted leave to the appellant, as the evidences on record were not investigated thoroughly. The co-accused was acquitted in the trial who was the owner of the house at the time when contraband was discovered in the house. But the police arrested the appellant a/c to the voter list of 2008 as he was the owner of that house in 2008 but they don’t further investigated that to whom possession of the house belongs to. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt then the burden of proof would have lied on the accused but prima facie there was nothing much so. There was also the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt but the prosecution lacked in that so as the prosecution failed the section 35 can’t be attracted. As there were others also who acknowledged that the appellant used to reside in his new house from the last 15 years and the erstwhile house owner was identified as Gokul Dangi. The court held that conviction could not be held on the preponderance of probability. As the prosecution had failed to establish a prima facie case, the evidence led was wholly insufficient and there has been gross misappreciation of evidence by the courts below bordering on perversity, the court inhibited in protecting the liberty of the individual. 

Author: Nishtha .,
Trinity institute of professional studies

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