POSSESSION
& PRE ARCOTIC SUMPTION IN
THE CONTROL OF NSUBSTANCES ACT, 1997
BY:
NOOR ALAM KHAN ASC,
MEMBER KPK BAR COUNCIL, PESHAWAR
MEMBER EXECUTIVE SCBA OF PAKISTAN
CHAIRMAN
VOICE OF PRISONERS
NOOR ALAM KHAN ASC,
MEMBER KPK BAR COUNCIL, PESHAWAR
MEMBER EXECUTIVE SCBA OF PAKISTAN
CHAIRMAN
VOICE OF PRISONERS
The word “possess” has been used in Section 6, 12, 22, 24,
29, 32, 39, which is relating to possession of Narcotics substances. Word
"possess " connotes some type of knowledge about the thing possessed
by a person.[1][1] It is
necessary to show that accused had article which turned out to be narcotic
drugs. Prosecution must prove that accused is knowingly in control of something
in the circumstances, which showed that he is assenting to be in control of it
and it is not necessary to show in fact that accused had actual knowledge of
that which he had. Knowledge is an essential ingredient of the offence as word
"possess " connotes in the context of S.6 of Control of narcotic
Substances Act, 1997 would be frustrated.[2][2] Some sort of
knowledge' about the things possessed. Accused must be knowingly in control of
something in the circumstances which showed that he is assenting to being in
control of the same. Not necessary to show in fact that accused had actual
knowledge of that which he had.[3][3] It is also
mean as "possession with knowledge".[4][4] in a wider
sense so as to include transport, despatch and delivery. Transportation within
the country is also prohibited and the finding relating to the ownership is not
required.[5][5] Knowledge is
an essential ingredient of the offence as the word `possess" connotes in
the context of S.6, possession with knowledge. Legislature could not have
intended to make mere physical custody without, knowledge an offence.
Possession, therefore, must be conscious possession.[6][6]
Possession has the following kinds:-
Actual Possession
A person has possession of something if the person knows of
its presence and has physical control of it, or has the power and intention to
control it. More than one person can be in possession of something if each
knows of its presence and has the power and intention to control it. The law
recognizes several kinds of possession. A person may have actual possession or
constructive possession. A person may also have sole possession or joint
possession. A person who has direct physical control of something on or around
his person is then in actual possession of it.
Not
necessary that the driver should also be the owner of the vehicle, or that only
owner of the vehicle is liable, and the driver could not be saddled with
liability. Driver who is in actual possession of the vehicle and the material,
is responsible; the owner of the truck could also be guilty in some cases, but
not necessarily in every case. In the absence of such motive, there is no
reason to discard the testimony of the officials. Evidence having gone unshaken,
mere delay in sending the sample could hardly be of any importance. Case
against accused persons, having been proved, they are rightly convicted and
sentenced.[7][7]
Constructive Possession
The legal possession of an object, even if it is not in a
person’s direct physical control. often used in criminal law prosecutions for possession crimes, such as possession of
illegal drugs. Generally, for a court to find that a person had
constructive possession of an object, the person must have had knowledge of the
object, and as well as the ability to control it. For example, someone
with keys to a safe deposit box may have constructive possession to the
contents of that box, and the owner of a car may have constructive possession
of the contents of its trunk
Possession shall mean having the
controlled substance on one's person or in constructive possession including,
but not limited to, constructive possession by that owner of a motor vehicle or
by that driver of a motor vehicle if the owner is not present who keeps or
allows to be kept in the motor vehicle a controlled substance."
The word possession
as define by the Pakistani courts particularly with respect to possession of
narcotics substances are that possession implies a physical capacity to deal
with the things as one likes to the exclusion of everyone else and a
determination to exercise that physical power on one’s own behalf. It implies
domination over an object that he has it and that he can exercise it.
Possession must be conscious and intelligent possession and not merely the
physical presence of the accused in proximity to the object.
Mere presence in the
room would not be enough to connect accused with physical possession of
narcotics lying on the table in the room, unless a positive evidence is led
that room belonged to those persons or that they are in its constructive
possession or they are holding or removing bundles, but no such evidence had
been led by prosecution. Prosecutor having also not supported prosecution case,
accused are acquitted.[8][8]
Mere presence in the room would not be
enough to connect accused with physical possession of narcotics lying on the
table in the room, unless a positive evidence is led that room belonged to
those persons or that they are in its constructive possession or they are
holding or removing bundles, but no such evidence had been led by prosecution.
Accused are acquitted.[9][9]
Conscious possession
Possession
in the context of S.6 of the Control of Narcotic Substances Act, 1997, denoted
possession with knowledge i.e., Conscious possession.[10][10] Possession
must be Conscious and intelligent possession and not merely the physical
presence of accused in proximity to the object.[11][11] Unless the
accused proves by preponderance of probability that he did not knowingly or
Consciously possess the said substance, he will be held guilty by virtue of
section 29.[12][12]
Knowledge is an essential ingredient of the offence as the word ‘possess’
connotes in the context of S.6, possession with knowledge. Legislature could
‘not have intended to make mere physical custody without, knowledge an offence.
Possession, therefore, must be Conscious possession.[13][13] Accused is
driver of the bus in question, while co-accused is its cleaner and charas is
also recovered from the secret cavities of the bus. No doubt existed regarding
the Conscious possession and knowledge of contraband in the case.[14][14]
Accused are in Conscious possession of the contraband item and the prosecution
having established its case of possession and transportation of the offensive
material, burden had shifted upon the accused to give a legally acceptable
explanation, but the position taken by them is not consistent and they had been
changing their plea to their convenience.[15][15] Huge
quantity of narcotics could not be expected to have been placed in the dicky of
the car without the Conscious knowledge of the accused. Convictions of accused
are upheld accordingly. [16][16]
Unless the accused proves by preponderance of probability that he did not
knowingly or Consciously possess the said substance, he will be held guilty by
virtue of section 29.[17][17]
Quantity to meet the threshold of S.9(c) of Control of Narcotic Substances Act,
1997 had not been proved by the prosecution. Such doubt, regarding the quantity
of narcotics recovered from the 'Conscious possession' of accused, due to lack
of proof, should go in favour of the accused.[18][18] Unless the accused proves by preponderance of
probability that he did not knowingly or Consciously possess the said article.
Without such proof accused will be held guilty by virtue of S.29 of the Act.[19][19]
Mere presence of accused, at the time of occurrence without any knowledge and
in absence of Conscious possession over contraband of accused could not be made
basis of his conviction.[20][20]
Possession in the context of S.6 of the Control of Narcotic Substances Act,
1997, denoted possession with knowledge i.e., Conscious possession. Accused had
admitted his presence in the truck at the time of incident and had failed to
disprove his possession of “Charas” as required under S.29 of the said Act.
Accused thus, would be presumed to be guilty of the offence. Conviction and
sentence of accused are upheld accordingly.[21][21] Huge
quantity of narcotics could not be expected to have been placed in the dicky of
the car without the Conscious knowledge of the accused. Convictions of accused
are upheld accordingly, but the sentence of imprisonment for life awarded to
each accused under S.9 of the Control of Narcotic Substances Act, 1997, is
reduced to five years’ R.I. in circumstances.[22][22]
Possession must be Conscious and not
merely the physical presence of accused in proximity to the object.
Identification of recovered material as heroin powder is also stated by
witnesses to be stone like material. Officials of Narcotics Force entered into official
premises in joint possession of many officials/officers of Department
concerned. Evidence showed that most of properties found lying in said Almirah
are case properties of the cases, trial wherein had either proceeded before
competent Courts of law or are still pending. All such facts had clearly
indicated that accused are neither in exclusive use of Almirah nor in exclusive
possession of recovered material which are alleged to be in their possession.
Prosecution, having failed to prove its case against accused, impugned judgment
of conviction and sentence awarded to accused by Trial Court, is set aside and
accused is acquitted of charge and is released.[23][23]
Nothing is on record to show the ownership of the contraband recovered from the secret cavities of
the vehicle. Co-accused is not connected
with the offence as Conscious possession, knowledge and ownership are not
proved. Co-accused could not be convicted on the available evidence, his appeal
is accepted. Judgment of conviction
recorded against him is set aside, in circumstances.[24][24]
Case of lady accused is distinguishable
and she would stand at par to the other lady accused who is acquitted by the
Trial Court with the observation that probably she had no Conscious knowledge
of the narcotic being carried in the vehicle by her co-accused; mere fact that
car which is used for the crime, belonged to son-in-law of the said lady
accused and she is also travelling in the said car, would not be sufficient to
suggest that she had Conscious knowledge of narcotics in the car and
consequently, the conviction and sentence awarded to the lady accused by giving
her benefit of doubt.[25][25]
Direct possession
Case
of co-accused is that there is no evidence against him as he is neither present
with accused at the time of recovery of alleged narcotic nor any contraband had
been recovered either from his direct possession or on his pointation. Accused
are acquitted of the charge levelled against them and are set at liberty.[26][26]
Alleged contraband material is not recovered
from the direct possession of accused person, but same is recovered from secret
cavities of the motorcar driven by co-accused. Accused persons, no doubt are
apprehended at the spot while seated in the vehicle, but no evidence had been
brought forth by the prosecution that they are in conscious knowledge of the
narcotics stashed in the secret cavities of the car. Accused are admitted to
bail, in circumstances.[27][27]
Recovery of heroin
from the accused had been witnessed by the officials of Anti‑Narcotic Force who
had supported the same in their statements made under S.161, Cr.P.C. Laboratory
test report in respect of the samples of the recovered material is in positive.
Recovery of the contraband heroin is effected not only from the direct
possession of the accused but also on their pointation from under the rear seat
of the car. High Court, however, directed the Trial Court to conclude trial
within four months failing which the accused would be at liberty to move
application before the said Court for their release on bail.[28][28]
Presumption
Under provisions of S.29 of Control of
Narcotic Substances Act, 1997 presumption would be that a person who is found
in possession of narcotics, had committed offence.[29][29] Firstly
prosecution has to establish the fact that narcotic drugs are recovered from
the possession of accused. If prosecution proves recovery of contraband from
constructive custody of accused, then burden of proof lies on accused to prove
that contraband recovered is not in his conscious knowledge.[30][30]
Presumption of possession of illicit articles is there unless person prosecuted
rebuts such presumption.[31][31]
If case is of possession of narcotic drug, then prosecution is under obligation
to prove that narcotic drug had been recovered from conscious possession of
accused.[32][32]
Prima facie, sole duty lay on the shoulders of prosecution to show the recovery
of the contraband articles from accused; and in case of proving the factum of
recovery, responsibility would shift on the shoulders of accused persons, in
view of S.29 of Control of Narcotic Substances Act, 1997 to prove the fact that
they had no concern or connection in recovery of contraband material or no
contraband material is recovered from their possession.[33][33] Prosecution
is not absolved from its primary duty to prove its case against accused beyond
doubt. When prosecution is discharged of its such duty, then accused charged
under Control of Narcotic Substances Act, 1997, should bring some susceptible
evidence to substantiate his plea of innocence.[34][34] Duty had
been cast upon the court under S.29 of Control of Narcotic Substances Act, 1997
to presume in a trial that accused had committed the offence, unless contrary
is proved.[35][35]
Onus lay upon accused to prove his unawareness about narcotic substance found
in his possession.[36][36]
In order to raise such a presumption in
law, the initial burden continues to be on the prosecution and it is only when
the prosecution has successfully discharged its burden of proof that the onus
would shift on the accused to rebut the said presumption which the law has
raised.[37][37]
Narcotic Substances Act, 1997, as a Special Law, is enacted mainly to curb the
menace of narcotics in the country. One of the main striking features provided
in the Act, which is different from the general principles of safe
administration of criminal justice, is that onus to prove the guilt of accused
had not been placed entirely on the prosecution, but on the accused to prove
his innocence. Legislature had cast a presumption in favour of the prosecution,
which had to be rebutted by accused to prove his innocence. Prosecution could
not be totally absolved of his obligations; and duty of initially establishing
a 'prima facie' case of recovery of contraband from conscious possession of
accused; and only after the said initial burden, is discharged by the
prosecution, that onus would shift upon accused to prove his innocence.[38][38]
Primary duty of the prosecution is to prove the case against accused beyond
reasonable doubt, but after discharging its burden, if accused would take plea
in defence, it is statutory burden upon the accused under S.29 of the Control
of Narcotic Substances Act, 1997 to discharge the same through cogent evidence.
Prosecution is supposed to establish that accused had some direct relationship
with the narcotic drugs, or had otherwise dealt with the same. If the
prosecution proved the detention of the article or physical custody of it, then
the burden of proving that accused is not knowingly in possession of the articles
is upon him. Practical difficulty of the prosecution to prove something within
the exclusive knowledge of accused must have made the legislature think that if
the onus is placed on the prosecution, the object of the said Act would be
frustrated. By virtue of S.29 of Control of Narcotic Substances Act, 1997,
prosecution had only to show by evidence that accused had dealt with the
narcotic substances or had physical custody of it, or directly concerned with
it, unless accused proved by preponderance of probability that he did not
knowingly or consciously possessed the article. Without such proof, accused
would be held guilty by virtue of S.29 of Control of Narcotic Substances Act,
1997.[39][39]
Duty upon the court has been cast under S.29 of Control of Narcotic Substances
Act, 1997 to presume in the trial that accused has committed an offence under
Control of Narcotic Substances Act, 1997, unless contrary is proved. Firstly
prosecution has to establish the fact that narcotic drugs are secured from the
possession of accused. If prosecution proves recovery of narcotics from
physical custody of accused, then burden of proving that he is not knowingly in
possession of the article is upon the accused.[40][40]
Section 29 of Control of Narcotic
Substances Act, 1997 cast duty upon the court to presume in a trial under the
Act that accused had committed the offence under that Act, unless contrary is
proved. If the case is of possession of narcotic drugs then prosecution had to
first establish the fact that the narcotic drugs are secured from the
possession of accused, and the court is required to presume that accused is
guilty, unless accused proved that he is not in possession of such drugs.
Prosecution is supposed to establish that accused had some direct relationship with
narcotic drugs or had otherwise dealt with it and if retention of the article
or physical custody of it is proved then the burden of proving that accused is
not knowingly in possession of the article is upon him. Practical difficulty of
the prosecution to prove something within the exclusive knowledge of accused,
must have made the legislature think that if the onus is placed on the
prosecution, the object of Control of Narcotic Substances Act, 1997 would be
frustrated. Knowledge is an essential ingredient of the offence as the word
"possession" connoted in the context of S.6 of Control of Narcotic
Substances Act, 1997, "possession with knowledge". Legislature could
not have intended to make mere physical custody without knowledge of offence,
therefore "possession" must be conscious possession. By virtue of
S.29 of Control of Narcotic Substances Act, 1997 the prosecution had only to
show by evidence that accused had dealt with the narcotic substance or had
physical custody of the same; or directly concerned with it, unless accused
would prove by preponderance of probability that he did not knowingly or
consciously possess the article. Without such proof, accused would be held
guilty by virtue of S.29 of Control of Narcotic Substances Act, 1997.[41][41]
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