Term “Possession” under Section 35 of NDPS Act means conscious or mental state of possession

Supreme Court: Deciding a matter dealing with possession of opium by the appellant, the bench of Dipak Misra and S.A. Bobde, JJ interpreted the term ‘possession’ and said that when one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to “actus of physical control and custody”, however, attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. Stating that there is a degree of flexibility in the use of the said term and that is why the word possession can be usefully defined and understood with reference to the contextual purpose for the said expression, it was further held that the term “possession” consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control.

Noting that over the years, courts have refrained from adopting a doctrinaire approach towards defining possession, the Court said that since a functional and flexible approach in defining and understanding the possession as a concept is acceptable and thereby emphasis has been laid on different possessory rights according to the commands and justice of the social policy, hence, the word “possession” in the context of any enactment would depend upon the object and purpose of the enactment and an appropriate meaning has to be assigned to the word to effectuate the said object.

Applying this interpretation to the case at hand, the Court said that the legislature while enacting the said law was absolutely aware of the said element and that the word “possession” refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. It was further held that conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act. Mohan Lal v. State of Rajasthan, 2015 SCC OnLine SC 357, decided on 17.04.2015

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