NDPS Act and Presumption of Guilt: Know Your Rights Under Sections 35 And 54 Of NDPS Act?

This article is written by Atishay Jain, a former UPSC aspirant and a core member of the ApniLaw team. With a strong focus on criminal and regulatory law, the article offers clear insights into complex legislations like the Narcotic Drugs and Psychotropic Substances (NDPS) Act. For any personal queries or suggestions, feel free to reach out to us through our official channel.

Introduction

Narcotics are powerful drugs that can alter the mind and body. While some are used medically, many are abused for their euphoric effects. This misuse leads to serious health, social, and legal consequences. Addiction, overdose, and even death are common risks. In India, the use and possession of narcotics are strictly controlled by the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.
Sections 35 and 54 of the NDPS Act, 1985, create strong presumptions that affect the rights of an accused person. These provisions reverse the usual burden of proof in criminal law.

What Is Section 35 Of NDPS Act?

1. Section 35 allows courts to presume a culpable mental state like intention, knowledge, or motive during prosecution.
2. The prosecution does not need to prove the mental intent. The law assumes the accused had it.
3. However, the accused can rebut this presumption. Rebuttable means something that can be challenged, disputed, or disproved with evidence.
4. They must show that they likely lacked the required mental state, this is done on a “preponderance of probabilities.”
5. The prosecution must still prove basic facts beyond a reasonable doubt before the presumption applies.

What Is Section 54 Of The NDPS Act?

1. Section 54 says that if someone possesses a narcotic or psychotropic substance, the court may presume they committed an offence.
2. This applies even without proof of intent. Possession alone is enough to trigger the presumption.
3. The accused must offer a satisfactory explanation to avoid conviction.
4. The presumption is rebuttable, but only after the court finds conscious possession.
5. The Supreme Court has stressed this in multiple cases.

The Rights Under Section 35 and 54 Of NDPS Act?

1. Reverse Burden of Proof: Under Sections 35 and 54, the burden shifts to the accused. They must prove their innocence after possession or mental intent is established.
2. Right to Rebut: The accused can present evidence. This can show they lacked knowledge, didn’t control the substance, or acted unknowingly.
3. Judicial Safeguards: Courts must still require the prosecution to prove key facts before presuming guilt.
4. Right to Fair Trial: Despite the shift in burden, the accused still enjoys the presumption of innocence and the right to a fair legal process.

Can Circumstantial Evidence Rebut Section 54 NDPS Presumption?

Yes, circumstantial evidence can rebut the presumption of guilt under Section 54 of the NDPS Act.

1. Courts accept circumstantial evidence to rebut NDPS presumptions. It must form a complete and consistent chain that points to innocence.
2. The evidence must rule out any other reasonable explanation.
3. Accused persons can highlight facts like:
   Lack of knowledge about the substance.
4. No conscious possession.
5. Procedural lapses during the seizure.
6. The prosecution must prove possession beyond reasonable doubt.
   • The accused must only show their version is more probable than not

What Are Some Important Supreme Court Judgments On This Section?

1. In the landmark judgment of Naresh Kumar alias Nitu v. State of Himachal Pradesh (2017), the Supreme Court of India clarified the application of Sections 35 and 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. The appellant, Naresh Kumar, was apprehended by police at Majhotli, Himachal Pradesh, and allegedly found in possession of two kilograms of Charas.
3. The prosecution claimed the arrest occurred at 6:15 A.M. However, the defense presented a bus ticket issued at 6:51 A.M., indicating the appellant was on a bus at the alleged time of arrest.
4. An independent witness, PW-2, denied witnessing the search and seizure, stating he was asked to sign documents at the police station later that day.
5. The Court emphasized that before invoking presumptions under Sections 35 and 54, the prosecution must establish foundational facts, such as possession, beyond a reasonable doubt.
6. The presumptions of culpable mental state and possession are rebuttable. The accused can counter these by presenting evidence that raises reasonable doubt.
7. The Court criticized the prosecution for ignoring the independent witness’s testimony and stressed that they cannot dismiss such testimony without valid reasons after initially relying on it.
8. The Court reiterated that the prosecution must prove the accused’s guilt beyond a reasonable doubt, while the accused’s burden to rebut presumptions is based on the preponderance of probabilities.

Noor Aga v. State of Punjab (2008)

In the landmark case Noor Aga v. State of Punjab (2008), the Supreme Court of India clarified the application of Sections 35 and 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

1. Noor Aga was apprehended at the Indira Gandhi International Airport, New Delhi, allegedly in possession of heroin concealed in his baggage.
2. The prosecution relied heavily on confessional statements made by the accused under Section 108 of the Customs Act.
3. However, Noor Aga contended that these confessions were obtained under duress and were not voluntary. He also highlighted procedural lapses, including improper handling of seized substances and non-compliance with mandatory legal provisions.
4. The Court emphasized that the presumption of innocence is a human right. Sections 35 and 54 of the NDPS Act, which place a reverse burden of proof on the accused, are constitutional but must be applied cautiously.
5. The prosecution must first establish foundational facts beyond a reasonable doubt before these presumptions can be invoke.
6. While the NDPS Act allows for a reverse burden of proof, the Court clarified that this does not absolve the prosecution from its duty to prove the essential elements of the offense.
7. Only after establishing possession and other foundational facts beyond a reasonable doubt can the burden shift to the accused.
8. The Court found significant procedural irregularities in the case, including:

• Failure to produce the seized contraband in court.

• Non-compliance with Section 52A regarding the disposal of seized narcotics.

• Lack of independent witnesses during the seizure.

• Reliance on confessional statements obtained under questionable circumstances.

Conclusion

Narcotics abuse is not just a personal issue, it’s a social crisis. It destroys families, increases crime, and burdens the healthcare system. The NDPS Act plays a vital role in regulating and penalizing illegal drug activities in India. However, awareness and education are equally important to prevent addiction. Combating the dangers of narcotics requires combined efforts from individuals, communities, and governments. Staying informed and spreading awareness is the first step toward a drug-free future.