The Presumption of Culpable Mental State under Section 35 of the NDPS Act: A Judicial Analysis

Introduction

The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is a stringent piece of legislation enacted to combat the illicit trafficking and consumption of narcotic drugs and psychotropic substances in India. A critical provision within this Act is Section 35, which introduces a statutory presumption regarding the "culpable mental state" of an accused. This presumption shifts the burden of proof onto the accused to demonstrate the absence of such a mental state. Given the severe penalties prescribed under the NDPS Act, the interpretation and application of Section 35 by the Indian judiciary have been subjects of extensive legal scrutiny. This article aims to provide a comprehensive analysis of Section 35, drawing upon key judicial pronouncements and relevant statutory principles to elucidate its scope, implications, and the safeguards surrounding its application.

The Statutory Mandate of Section 35 NDPS Act

Section 35 of the NDPS Act, 1985, titled "Presumption of culpable mental state," is a cornerstone in prosecutions under the Act. Its provisions are as follows:

Sub-section (1) mandates that in any prosecution requiring a culpable mental state, the court *shall* presume its existence. The Explanation clarifies that "culpable mental state" is an inclusive term, encompassing intention, motive, knowledge of a fact, and belief in, or reason to believe, a fact. This presumption, however, is rebuttable. The accused has the right to prove that they did not possess such a mental state. Sub-section (2) sets a high standard for the accused to discharge this burden: the fact of the absence of a culpable mental state must be proved "beyond reasonable doubt," not merely by a preponderance of probability. This is a significant departure from the general principle in criminal law where the accused typically needs to establish a defence on a preponderance of probabilities. The Supreme Court in Mohan Lal v. State Of Rajasthan (2015 SCC 6 222) observed that the legislature, by employing such language in Section 35, was acutely aware of the mental element inherent in offences like "possession."

Judicial Interpretation and Application of Section 35

The judiciary has played a crucial role in interpreting the contours of Section 35, balancing its objective of effective prosecution with the fundamental rights of the accused.

Triggering the Presumption: Initial Burden on Prosecution

While Section 35 creates a presumption, it is not absolute from the inception of the prosecution. The courts have consistently held that the initial burden lies on the prosecution to establish certain foundational facts before the presumption can be invoked. The Supreme Court, in Bhola Singh v. State Of Punjab (2011) 11 SCC 653, as cited in MR R GOPAL REDDY v. MR. MOHAMMED MUKARAM (Karnataka High Court, 2024) and MR.AJESH KUMAR SHANKAR v. THE STATE OF KARNATAKA (Karnataka High Court, 2025), clarified that the prosecution must first prove beyond reasonable doubt the basic facts constituting the offence. Only then does the onus shift to the accused under Section 35. Similarly, in Baldev Singh v. State Of Haryana (2015 SCC ONLINE SC 1138), the Supreme Court noted that "Once the physical possession of the contraband by the accused has been proved, Section 35 of the NDPS Act comes into play and the burden shifts on the appellant-accused to prove that he was not in conscious possession of the contraband."

The Gauhati High Court in Sangte Paite v. The State Of Meghalaya And Anr. (Meghalaya High Court, 2023), referencing Mohan Lal, reiterated that the presumption under Section 35 cannot mean that the burden shifts from the very inception without the prosecution establishing anything more. The Madhya Pradesh High Court in Malook Khan And Another v. State Of M.P (1998 SCC ONLINE MP 183) emphasized that the prosecution is obliged to prove by cogent, reliable, and acceptable evidence that the person alleged to have knowledge of the said fact was indeed having that knowledge, and this must be proved beyond reasonable doubt before the presumption can be fully operational against the accused.

Nature and Scope of "Culpable Mental State" and "Conscious Possession"

The Explanation to Section 35(1) defines "culpable mental state" broadly. In the context of the NDPS Act, this often translates to establishing "conscious possession" of the contraband. The Supreme Court in Madan Lal And Another v. State Of H.P (2003 SCC CRI 1664), as cited in Kashmir Singh v. State Of Punjab (Punjab & Haryana High Court, 2006), elucidated that "possession" can be constructive and "conscious" implies awareness. Once possession is established, Section 35 statutorily recognizes the presumption of conscious possession, and the accused must then prove otherwise. This principle was also affirmed in Dharampal Singh v. State Of Punjab (2010 SCC 9 608), where the Court emphasized that possession under the NDPS Act encompasses a mental state of control or custody.

The Supreme Court in Mohan Lal v. State Of Rajasthan (2015 SCC 6 222) explicitly linked the concept of "conscious possession" under Section 18 of the NDPS Act to the legislative awareness evident in Section 35. The Rajasthan High Court in Pappi @ Abdul Rashid v. State (Rajasthan High Court, 2010) held that when an accused is found carrying contraband, knowledge of the fact is presumed under Section 35, especially when read with Section 54 of the Act.

Rebutting the Presumption: The Accused's Defence

An accused can rebut the presumption under Section 35. The standard of proof for this rebuttal, as stipulated in Section 35(2), is "beyond reasonable doubt." This is a notably high threshold for the defence. The Supreme Court in Abdul Rashid Ibrahim Mansuri v. State Of Gujarat (2000 SCC CRI 496) held that the burden is on the accused to prove that he had no knowledge that the bags in his possession contained a narcotic substance, and this must be proven beyond a reasonable doubt. The Madhya Pradesh High Court in Malook Khan (1998) provided a detailed exposition on this standard, contrasting it with the usual "preponderance of probability" and underscoring the legislative intent for a rigorous proof from the accused to dispel the presumed mental state.

Regarding the modes of rebuttal, the Supreme Court in Abdul Rashid Ibrahim Mansuri (2000), as discussed in Swapan Mazumdar v. State Of Assam And Another (2018 SCC ONLINE GAU 2084) and Keshav & Others v. State Of U.P (Allahabad High Court, 2017), indicated that the accused can discharge this burden by relying on materials available in the prosecution evidence, eliciting answers from prosecution witnesses through cross-examination, or adducing their own evidence. The Meghalaya High Court in Sangte Paite (2023) echoed these modes, stating that if circumstances in the prosecution case or evidence give reasonable assurance that the accused lacked the requisite knowledge or intention, the burden under Section 35 would stand discharged even without the accused adducing separate defence evidence.

Section 35 in Conjunction with Other Provisions

Section 35 often operates in tandem with other provisions of the NDPS Act. Section 54, which presumes that the accused has committed an offence in respect of any narcotic drug for the possession of which he fails to account satisfactorily, is frequently read with Section 35. The Supreme Court in Gian Chand And Others v. State Of Haryana (2013 SCC 14 420) explicitly noted the statutory presumption of conscious possession under Sections 35 and 54 of the Act. This linkage was also highlighted in Kashmir Singh v. State Of Punjab (2006) and Pappi @ Abdul Rashid (2010).

The interplay between Section 35 and Section 25 (Punishment for allowing premises, etc., to be used for commission of an offence) has also been a subject of judicial consideration. Section 25 requires that the owner or occupier "knowingly permits" the use of premises for an offence. In HARWINDER SINGH v. PB.ST. (Punjab & Haryana High Court, 2023), the court opined that the presumption under Section 35 would not dilute the burden on the prosecution under Section 25 to prove the "knowingly permits" aspect, especially if there is no iota of evidence regarding such knowledge. This view, emphasizing the need for initial evidence of knowledge for Section 25, was also reflected in analyses citing Bhola Singh in MR R GOPAL REDDY (2024) and MR.AJESH KUMAR SHANKAR (2025).

Constitutional Considerations and Procedural Safeguards

The reverse burden of proof enshrined in Section 35 has been examined in light of the constitutional presumption of innocence. The Supreme Court in Noor Aga v. State Of Punjab And Another (2008 SCC 16 417) dealt extensively with reverse burden provisions, emphasizing that while such clauses are permissible, they must not unduly infringe upon the constitutional rights of the accused and must be balanced with strict adherence to procedural safeguards. The Court stressed that the presumption of innocence is a fundamental right under Article 21 of the Constitution.

The stringent nature of the NDPS Act, including harsh punishments and the presumption under Section 35, necessitates meticulous compliance with all procedural safeguards provided in the statute. The Supreme Court in Abdul Rashid Ibrahim Mansuri (2000) found that non-compliance with Section 42 (regarding recording of information) deprived the prosecution of material to establish the appellant's culpable mental state, thereby impacting the presumption under Section 35. The Gauhati High Court in Swapan Mazumdar (2018), citing Krishan Chand v. State of Haryana (2013) 2 SCC 502, observed that "the harsher is the punishment, the more is the strictness of proof required from the prosecution," and safeguards must be strictly construed.

In Union Of India, Thro. Amitkumar, Intelligence Officer Or His Successor In Office v. State Of Gujarat (2022 SCC ONLINE GUJ 1533), the Gujarat High Court considered the applicability of Section 35 presumption in a case involving co-accused, indicating that mere companionship without further evidence of shared knowledge or control over contraband might not be sufficient to sustain the presumption against all accused equally, especially if one accused is found in direct physical possession.

Conclusion

Section 35 of the NDPS Act represents a significant legislative tool in the fight against drug trafficking, establishing a presumption of culpable mental state to aid prosecutions. However, the Indian judiciary has carefully delineated its application. It is now well-established that the prosecution bears the initial burden of proving foundational facts, including possession, beyond a reasonable doubt before this presumption is triggered. While the accused carries the heavy burden of rebutting this presumption by proving the absence of a culpable mental state beyond reasonable doubt, they can do so through various means, including by pointing to deficiencies in the prosecution's own case.

The courts have consistently underscored that the stringent provisions of the NDPS Act, including Section 35, demand strict compliance with all procedural safeguards by investigative agencies. The presumption of innocence, though qualified by Section 35, remains a vital human right. The judicial interpretation of Section 35 reflects a careful balancing act: ensuring that the legislative intent to effectively prosecute drug offenders is met, while simultaneously upholding the principles of fair trial and protecting the accused from arbitrary application of severe penal provisions. The continued evolution of jurisprudence in this area will be crucial in maintaining this delicate equilibrium.