Presumption of culpable mental state
Section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 deals with presumption of culpable mental state. 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 offenc The Act came into force on 14 Nov 1985.
(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.
Section 35, The Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61 of 1985).
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Noor Aga v. State of Punjab
Court's Decision & Legal Precedent
Judgment of Main Case order-11.pdf 2008-07-09 DATE-CHECK FP (2006-06-09 HC / 2000-06-07 trial / 1997-08-01 incident are fact dates; body is Crl.A. 1034/2008 S.B. Sinha REPORTABLE Noor Aga v. State of Punjab). Isolate: NDPS ss.35 and 54 reverse-burden provisions are constitutional, but the prosecution must first prove foundational facts to a heightened standard; physical evidence of the contraband must be produced; conviction set aside. Attach 35 and 54 only — do not pad 22/23 (charged offences, not the reverse-burden isolate).
On this section: NDPS s.35: presumption of culpable mental state is constitutional, but only after the prosecution proves foundational facts to a heightened standard (Noor Aga). Do not pad 22/23/50.
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Harbhajan Singh vs The State of Haryana Department of Home Home Secretary
Court's Decision & Legal Precedent
The conviction of a vehicle owner under Section 25 of the NDPS Act cannot be legally sustained unless the prosecution proves beyond reasonable doubt that the vehicle was used for commission of the offence with the knowledge and consent of the owner. The burden lies on the prosecution to establish foundational facts proving the owner's knowledge and consent. The presumption under Section 35 of the NDPS Act can only be invoked after the prosecution has discharged its initial burden of proving foundational facts. Mere registration of a vehicle in the name of a person is insufficient to establish liability under Section 25 NDPS Act without proof of knowledge and consent. The burden of proof cannot be shifted to the accused merely on the basis of ownership without the prosecution first establishing the essential elements of the offence.
On this section: Provides for presumption of culpable mental state. Court held that this presumption can only be invoked after prosecution proves foundational facts beyond reasonable doubt, not merely by preponderance of probability.
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Bhola Singh vs State of Punjab
Court's Decision & Legal Precedent
In prosecutions under the Narcotic Drugs and Psychotropic Substances Act, the presumption of culpable mental state under Section 35 cannot be invoked unless the prosecution first proves, beyond reasonable doubt, the foundational facts establishing that the accused had knowledge of the vehicle or property being used for narcotic drug trafficking. Mere co-ownership of a vehicle or providing a wrong address during registration, without evidence of knowledge of the vehicle's misuse, is insufficient to establish the culpable mental state required for conviction under Sections 15 and 25 of the Act.
On this section: Presumption of culpable mental state; Court clarified that foundational facts must be proved beyond reasonable doubt before this presumption can be invoked
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Tofan Singh vs The State of Tamil Nadu through the Ineliigence Officer
Court's Decision & Legal Precedent
Officers designated under Section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are 'police officers' within the meaning of Section 25 of the Indian Evidence Act, 1872. Consequently, any confessional statement made to such officers is barred from being used as evidence under Section 25 of the Evidence Act. Additionally, a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act, as Section 67 is limited to calling for information and examining persons during an inquiry antecedent to investigation, not for recording confessions as substantive evidence.
On this section: Presumption of culpable mental state in prosecutions under the Act
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Gian Chand vs State of Haryana
Court's Decision & Legal Precedent
Once possession of contraband articles is established in a drug trafficking case, the statutory presumptions under Sections 35 and 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985 operate against the accused, presuming conscious possession and knowledge of the contraband. The burden thereupon shifts to the accused to prove that he had no knowledge or conscious possession of the contraband. The absence of independent witnesses does not render police testimony unreliable if such testimony is found to be cogent, convincing, credible and reliable upon scrutiny. The failure to examine incriminating circumstances under Section 313 of the Criminal Procedure Code does not vitiate the trial unless material prejudice to the accused is demonstrated. In cases of narcotics possession, the facts regarding how the contraband came to be in the vehicle fall within the special knowledge of the accused under Section 106 of the Indian Evidence Act, 1872.
On this section: Creates statutory presumption of mental state for commission of offense; once possession established, burden shifts to accused to prove lack of knowledge
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Dehal Singh vs State of H. P
Court's Decision & Legal Precedent
When contraband is recovered from a private vehicle in which an accused is traveling, both the driver and passengers are presumed to have conscious possession of such contraband. The burden then shifts to the accused to prove that possession was not conscious. Mere statements under Section 313 CrPC without examination as a witness under oath are insufficient to discharge this burden. Weight discrepancies in forensic samples are immaterial when field weighing is done using non-precision scales (such as grocery shop scales) and laboratory weighing is done using precision scales, provided there is no evidence of tampering with or mishandling of the samples. Compliance with procedural requirements under Section 50 of the NDPS Act (regarding search of persons) is satisfied by offering the accused an option to be searched before a Gazetted Officer or Magistrate when the primary object of search is a vehicle, and personal search occurs incidentally after arrest at the police station.
On this section: Applied to establish statutory presumption that once possession is established, the accused had culpable mental state (conscious possession); burden then shifts to accused to prove lack of consciousness
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State of Punjab vs Hari Singh
Court's Decision & Legal Precedent
Where an accused is charged with possession of narcotic articles under Section 15 of the NDPS Act, conscious possession - meaning awareness of the nature of the article coupled with a deliberate or intended state of mind - is an essential legal requirement. In the absence of questioning the accused under Section 313 CrPC regarding this vital element of the prosecution case, the trial suffers from a serious procedural infirmity that cannot be cured by circumstantial evidence of physical possession alone, and the conviction must be set aside as violating the fundamental principles of natural justice and fair trial.
On this section: Section 35 creates a statutory presumption that once possession of narcotic articles is established, the burden shifts to the person to prove that possession was for authorized purposes. Court noted this presumption but held that first, conscious possession must be established.
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Dharampal Singh vs State of Punjab
Court's Decision & Legal Precedent
In narcotic drug possession cases under Section 18 NDPS Act, once the prosecution establishes possession of the illicit article (by proving recovery from a vehicle the accused was driving or occupying), the burden shifts to the accused to prove such possession was not conscious. In the case of private vehicles (not public transport), the mere fact of driving and occupying the vehicle from which narcotic drugs are recovered, combined with the statutory presumptions under Sections 54 and 35 NDPS Act, establishes conscious possession beyond reasonable doubt. The procedural requirement of Section 50 NDPS Act applies only to personal body searches and not to vehicle searches. The absence of questions explicitly framing the conclusion about conscious possession in Section 313 CrPC examination is not fatal if the circumstances leading to such conclusion were put to the accused and they failed to provide satisfactory explanation.
On this section: Statutory recognition of culpable mental state including knowledge as a required element. Court used this section to establish that the appellants' knowledge and mental state supported conscious possession finding.
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State of Punjab vs Lakhwinder Singh
Court's Decision & Legal Precedent
Once the prosecution establishes that an accused person was in physical possession of contraband drugs, including through circumstantial evidence such as proximity to the substance, suspicious conduct upon seeing police, and failure to provide satisfactory explanation, the statutory burden shifts to the accused to prove they did not have conscious knowledge of the possession. Minor procedural discrepancies in the seizure process do not vitiate the conviction where the integrity of the seized evidence is maintained, samples are properly sealed, and no actual tampering is demonstrated. A delay in sending samples to the forensic laboratory, without proof of tampering and with evidence of intact seals, is not fatal to the prosecution case.
On this section: Provides statutory presumption that once possession is established, the burden shifts to the accused to prove they were not knowingly in possession
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Derajram Jat vs State of Gujarat
Court's Decision & Legal Precedent
In criminal cases, proof beyond reasonable doubt does not mean proof beyond shadow of doubt but requires a high degree of probability. Courts are not obligated to grant benefit of doubt based on fanciful possibilities or lingering suspicion when evidence is strong enough to leave only a remote possibility in favor of the accused that can be dismissed with the statement 'of course it is possible but not in the least probable.' The presumption of innocence must be judged on the basis of conceptions of a reasonable prudent man, not on meticulous hypersensitivity to eliminate a rare innocent at the cost of allowing many guilty to escape. When both the Trial Court and High Court concurrently conclude on the basis of the same evidence, the Supreme Court will not interfere unless there is manifest error or perversity.
On this section: Invoked to establish burden on accused to prove they were not in possession of seized narcotic substances
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Questions about Section 35
What have the courts held on Section 35 of the Narcotic Drugs and Psychotropic Substances Act?
Noor Aga v. State of Punjab (09 Jul 2008) is the leading judgment on this section among those set out below: NDPS s.35: presumption of culpable mental state is constitutional, but only after the prosecution proves foundational facts to a heightened standard (Noor Aga). Do not pad 22/23/50. Another 9 judgments on this section are set out below, all of them from the Supreme Court. They run from 2008 to 2023.
How do I find court cases under Section 35 of the Narcotic Drugs and Psychotropic Substances Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: NDPS Act 35, section 35 NDPS Act, section 35 of the Narcotic Drugs and Psychotropic Substances Act. People searching for it also type 35 ndps act. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 10 reported judgments on this section are set out on this page, beginning with Noor Aga v. State of Punjab (09 Jul 2008).
When did Section 35 of the Narcotic Drugs and Psychotropic Substances Act come into force?
Section 35 of the Narcotic Drugs and Psychotropic Substances Act, cited as NDPS Act 35, came into force on 14 Nov 1985, having been enacted on 16 Sep 1985. It is in force as at the date shown on this page.
Other sections of this Act
- 2. Definitions1747 words
- 68B. Definitions819 words
- 9. Power of Central Government to permit, control and regulate816 words
- 36A. Offences triable by Special Courts631 words
- 10. Power of State Government to permit, control and regulate568 words
- 42. Power of entry, search, seizure and arrest without warrant or authorisation507 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 14 Oct 2026. This page is not a substitute for legal advice.