JUDGMENT : Michael Zothankhuma, J. Heard Mr. H. Zodinsanga, learned Amicus Curiae and Ms. Vanneihsiami, learned Addl. Public Prosecutor for the State respondent. 2. This is an appeal against the judgment and Order dated 23.09.2022 passed by the Special Court, ND&PS Act, Aizawl in S.R. No. 238/2018 arising out of Crl. Tx. Ex. No 1623/2018, by which the appellant has been convicted u/s 21 (c) ND&PS Act and sentenced to undergo Rigorous Imprisonment for 12 years with a fine of Rs. 1,00,000/-, in default Rigorous Imprisonment for another 1 year. 3. The prosecution case in brief is that the Sub-Inspector of the Special Narcotics Police Station, CID (Crime) submitted an FIR dated 11.06.2018, stating that he had received information that some persons were suspected of committing an offence under the ND&PS Act, 1985 in the New Market area of Dawrpui. In this regard, Information Report was immediately submitted to the Officer-in-Charge of the Special Narcotics Police Station, who immediately issued authorization letter u/s 41(2) of the ND&PS Act, authorizing the informant to inquire into the matter. 4. The informant immediately proceeded towards the New Market area, Dawrpui and requested two persons to become independent witnesses, who were residents of Dawrpui locality. 5. On reaching the New Market, Dawrpui locality, the Police saw the suspected persons standing near the High Mast in the New Market area, Dawrpui. The suspected persons, i.e. the appellant and co-accused Lalruatpuii were carrying one black ruck sack and one Rambo polythene respectively, suspected to be containing heroin. They approached the suspected persons and informed them that they were suspected of possessing illegal substances in contravention of the ND&PS Act. Before search was conducted on the suspected persons, they were asked as to whether they wanted to be searched before a Gazetted Officer or a Magistrate, which they declined. 6. On a search being conducted of the suspected person’s belongings in the presence of the 2 local independent witnesses, they found a Rambo polythene inside the black ruck sack. The Rambo polythene contained a number of plastic soap cases, which was suspected to contain heroin. There were 39 plastic soap cases containing suspected heroin. The heroin was 494.98 grams and the same was seized on 11.06.2018 at 5pm. The possessor of the illegal drugs i.e., the appellant and co-accused Lalruatpuii, were arrested. 7. The Rambo polythene contained a number of plastic soap cases, which was suspected to contain heroin. There were 39 plastic soap cases containing suspected heroin. The heroin was 494.98 grams and the same was seized on 11.06.2018 at 5pm. The possessor of the illegal drugs i.e., the appellant and co-accused Lalruatpuii, were arrested. 7. An inventory of the seized articles was made and an application was submitted to the Magistrate on 12.06.2018, for certifying the correctness of the st inventory, photographs and drawing of sample. The Judicial Magistrate 1 Class thereafter compared the inventory and the articles seized and put his signature on the inventory in terms of Section 52A of the NDPS Act. 8. After recording the statements of the witnesses and after receiving the FSL report, which stated that the 39 samples drawn were found to be heroin, with purity of about 85%, the case I.O. submitted the charge sheet, having found a prima facie case u/s 21(c)/29 of the ND&PS Act, 1985 against the appellant and the co-accused Lalruatpuii. 9. Charge was framed by the learned Trial Court against the appellant u/s 21(c) of the ND&PS Act, for violation of Section 8(c) of the ND&PS Act, to which the appellant claimed that though the 39 soap cases was seized from him, the same did not belong to him as he was simply the delivery boy. The appellant thus pleaded not guilty. 10. During the trial, the learned Trial Court examined 5 prosecution witnesses and the appellant, who was the sole defence witness No. 1 (DW-1). During the trial, the co-accused Lalruatpuii absconded and forfeited her bail bond. The co-accused Lalruatpuii was proclaimed an absconder vide Order dated 25.07.2022 passed by the learned Trial Court. After the evidence of the witnesses were recorded, the appellant was examined u/s 313 CrPC wherein, he was asked to explain the evidence that had been recorded against him. The answers given by the appellant to the questions put to him u/s 313 CrPC, is to the effect that one unknown female person had called him in the early part of May, 2018, asking him to search for a customer to whom heroin could be sold, on the promise of being given a reward. As he was facing financial constraints at that time, he agreed to the same, though, he did not know that the seized article was heroin. 11. As he was facing financial constraints at that time, he agreed to the same, though, he did not know that the seized article was heroin. 11. The questions put to the appellant and the answers given by him during his examination u/s 313 CrPC, are reproduced herein below as follows:- “Q. 1: Evidence against you is that in the early part of May, 2018, one unknown female person telephoned you, she thereby asking to search customer for selling heroin, you therefore searched customer and later found one intended customer. Do you have any explanation on it. Ans: It is false, they rather asked me to seek customer and they also promised me to give me a reward, as we were facing financial constraint at that time, I agreed the same. I also gave seized heroin to the intended customer but I did not know that it was heroin. Q. 2: Evidence against you further elicited that on dt. 11/6/2018, you met your intended customer, you also confirmed that he have a money to purchase but not having enough money to purchase your all seized heroin. You therefore took heroin from your female partner, when you were dealing heroin with your intended customer at New Market, near High Mass, Dawrpui, Aizawl the police force caught you red handed with seized heroin. At that time, you carried a rucksack which contain heroin, co-accused Smt. Lalruatpuii also carried Rambo polythene which contained heroin and the total was 39 soap cases of heroin. Do you have any explanation on it. Ans: It is true and correct but I did not know that it was heroin and I therefore did not have any consciousness on it. Q. 3: Evidence against you further elicited that the police personnel recovered and seized the seized heroin in the presence of civilian witnesses. Do you have any explanation on it. Ans: I did not know the presence of civilian witnesses. Q. 4: Prosecution evidence further reveals that weighing, packing and sealing of seized article was done by the Police personnel in the presence of reliable civilian witnesses, weight of seized heroin was therefore494.98 grams. Do you have any explanation on it. Ans: It is beyond my knowledge. Q. 5 FSL report reveals that purity of seized heroin was 85 % w/w at the time of examination. Do you have any explanation on it. Ans: It is beyond my knowledge. Do you have any explanation on it. Ans: It is beyond my knowledge. Q. 5 FSL report reveals that purity of seized heroin was 85 % w/w at the time of examination. Do you have any explanation on it. Ans: It is beyond my knowledge. Q. 6: Do you have any other explanation in your case? Ans: I am seriously regretted and I never indulge with any illicit drugs and drinks, I did not have any conscious on seized heroin. Q. 7: Do you want to adduce defence evidence in your case? Ans: Yes.” 12. The learned Trial Court thereafter came to a finding that it was not believable that the appellant did not know the contents of the seized articles was heroin, which he was trying to deliver for earning money. Further the appellant could not prove that he was innocent of the charge in terms of Section 35 of the ND&PS Act. The learned Trial Court thereafter convicted the appellant u/s 21(c) of the ND&PS Act, 1985 vide Judgment & Order dated 23.09.2022 and sentenced him to undergo Rigorous Imprisonment for 12 years with a fine of Rs. 1 Lakh, in default Rigorous Imprisonment for one year, vide sentence order dated 23.09.2022. 13. The learned Amicus Curiae submits that the appellant does not deny the fact that he had been asked by one Nutei, who had a shop at the New Market Area, to deliver a parcel for the co-accused Lalruatpuii. The request had been made by Nutei to the appellant on 10.06.2018. The appellant thereafter went to Nutei’s shop on 11.06.2018 wherein, Lalruatpuii arrived. Lalruatpuii then told the appellant to go near the High Mast in the New Market Area with the parcel for delivery, where he would get a call. 14. On approaching the High Mast area, the appellant received a call from a person who was to collect the parcel. Thereafter, the appellant was met by a person who had asked him if he had brought the parcel for delivery. The appellant said yes and handed over the parcel to the said person. Thereafter, the appellant was apprehended by the Police with the contraband in a black polythene inside a WAI WAI box. When asked as to who was the owner of the parcel, he told the Police it belonged to Mrs. Ruatpuii. As Mrs. Ruatpuii was still in Mrs. The appellant said yes and handed over the parcel to the said person. Thereafter, the appellant was apprehended by the Police with the contraband in a black polythene inside a WAI WAI box. When asked as to who was the owner of the parcel, he told the Police it belonged to Mrs. Ruatpuii. As Mrs. Ruatpuii was still in Mrs. Nuteii’s shop, he took the Police there and Mrs. Ruatpuii was apprehended. 15. The learned Amicus Curiae for the appellant submits that there was no knowledge on the part of the appellant that what he had carried for delivery contained heroin. The appellant did not know the contents of what he carried and had only agreed to carry the same due to financial constraints. He submits that an initial burden exist upon the prosecution to prove that the appellant was in conscious possession of the drugs. As the same was not done, the presumptive provision of reverse burden of proof as per u/s 35 & 54 of the NDPS Act could not be made applicable to the petitioner. In support of his submission, he has relied upon the judgments of the Supreme Court in the case of Naresh Kumar Alias Nitu Vs. State of Himachal Pradesh reported in (2017) 15 SCC 684 and Abdul Rashid Ibrahim Mansuri Vs State of Gujarat reported in (2000) 2 SCC 513 . 16. The learned Amicus Curiae thus prays that that the impugned judgment & order should be set aside. 17. The learned Addl. Public Prosecutor submits that the appellant has not denied the fact that he was to make a delivery on the request of the co-accused Lalruatpuii, who absconded. The said deed having been done, the stand of the appellant that he was not aware that he had carried heroin cannot be believed, as he was in conscious possession of the drugs. 18. The learned Addl. Public Prosecutor submits that there being no infirmity in the decision of the learned Trial Court, the same should not be interfered with. 19. We have heard the learned counsels for the parties. 20. The submissions made by the counsels for the parties and the evidence recorded by the learned Trial Court clearly shows that the appellant was in possession of the contraband. 19. We have heard the learned counsels for the parties. 20. The submissions made by the counsels for the parties and the evidence recorded by the learned Trial Court clearly shows that the appellant was in possession of the contraband. The contention of the appellant that he was not aware that what he had been asked to deliver was heroin, requires the appellant to prove that he was not in conscious possession of the drugs, as possession of the same by the appellant is not disputed. 21. The word ‘conscious’ means awareness about a particular fact. It is a state of mind which is deliberate or intended. 22. Sections 35 and 54 of the NDPS Act states as follows:- “ 35. Presumption of culpable mental state.- (1) In any prosecution for an offence 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 defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence 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.” 54. 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 offence under this Act in respect of— (a) any narcotic drug or psychotropic substance or controlled 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 adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily]. 23. In the case of Dehal Singh Vs. 23. In the case of Dehal Singh Vs. State of H.P., reported in (2010) 9 SCC 85, the Supreme Court has held that Section 35 of the Act recognizes that once possession is established, the Court can presume that the accused had a culpable mental state, meaning thereby conscious possession. It also held that presumption of conscious possession is further available under Section 54 of the Act, which provides that accused may be presumed to have committed the offence unless he accounts for satisfactorily, the possession of the contraband. 24. In the case of State of Punjab Vs. Hari Singh, reported in (2009) 4 SCC 200, the Supreme Court has held that whether there was conscious possession had to be determined with reference to the factual backdrop in each case. It also held that once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54, where also presumption is available to be drawn from possession of illicit articles. 25. In the case of Baldev Singh Vs. State of Haryana, reported in (2015) 17 SCC 554, the Supreme Court held that once the possession of the contraband by the accused has been established, it is for the accused to discharge the onus of proof that he was not in conscious possession. Burden of proof cast on the accused under Section 35 of the NDPS Act can be discharged through different modes. 26. In the case of Rakesh Kumar Raghuvanshi Vs. State of Madhya Pradesh, reported in 2025 SCC OnLine SC 122, the Supreme Court has held that conscious possession refers to a scenario where an individual not only physically possesses a narcotic drug or psychotropic substance, but is also aware of its presence and nature. In other words, it requires both physical control and mental awareness. It held that this concept has evolved primarily through judicial interpretation since the term "conscious possession" is not explicitly defined in the NDPS Act. The Supreme Court further held that possession under the NDPS Act should not only be physical but also conscious. In other words, it requires both physical control and mental awareness. It held that this concept has evolved primarily through judicial interpretation since the term "conscious possession" is not explicitly defined in the NDPS Act. The Supreme Court further held that possession under the NDPS Act should not only be physical but also conscious. Conscious possession implies that the person knew that he had the illicit drug or psychotropic substance in his control and had the intent or knowledge of its illegal nature. 27. Para 22 of Rakesh Kumar Raghuvanshi (supra) is extracted hereinbelow as follows:- “22. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513 , this Court highlighted that once the prosecution proves physical possession, the burden shifts to the accused to explain how he came into possession of the contraband and prove that he was not aware of its presence or nature. The Court ruled that a person who admits that drugs were found in his possession must prove that he had no knowledge of the illicit nature of the substance.” 28. The evidence of the witnesses, including the appellant, shows that the appellant was in possession of the contraband, which was to be delivered to a person he did not know. The goods that were to be delivered were received by the appellant from the co-accused Lalruatpuii. The delivery of the goods had been agreed to by the appellant, as he had been promised a reward. Keeping in view fact that the appellant was caught with the contraband, which was in his possession, the appellant was to prove that he did not know that he was carrying contraband. 29. The appellant could have called Nutei, who had originally asked him to carry the seized article for the co-accused Lalruatpuii, so that Nutei could have given evidence in support of the appellant’s stand that he did not know that he was carrying contraband. However, there is nothing to show that the appellant had asked for the examination of Nutei as a Defence witness. 30. The weight of the heroin that had been seized is 494.98 grams, which is a commercial quantity. It is quite unbelievable that a person would be asked to carry a box within a very small area and be rewarded for it without knowing the contents of it. 30. The weight of the heroin that had been seized is 494.98 grams, which is a commercial quantity. It is quite unbelievable that a person would be asked to carry a box within a very small area and be rewarded for it without knowing the contents of it. On perusing the evidence of the witnesses and the fact that the appellant has admitted that he had been promised a reward for delivering the seized article, we are of the view that the appellant was aware of the contents of what he had been asked to deliver. The appellant, in our view, has not been able to establish that he was not in conscious possession of the heroin that he carried for delivery. Though the question of conscious possession had been put to the appellant in his examination under Section 313 Cr.P.C., the appellant had given his explanation to the effect that he had agreed to the delivery, as he was in financial constraints and as he was promised a reward. Though the appellant has stated in his examination under Section 313 Cr.P.C. that he was not aware that what he was delivering was heroin, we are of the view that the same is only an afterthought. 31. On considering the fact that the appellant was in possession of the contraband at the time of delivery, we hold that the appellant has not been able to establish that he was not in conscious possession of the seized heroin. Accordingly, we do not find any ground to interfere with the conviction of the appellant by the learned Trial Court. 32. The appeal is accordingly dismissed. Send back the LCR. 33. In appreciation of the assistance of the learned Amicus Curiae, his fee of Rs.8500/- is to be paid by the State Legal Services Authority.