Evidentiary Presumptions In Drug Trafficking Cases Under Nepalese Law

16 Oct 2025 --
0 Comments

🧾 1. Legal Framework: Evidentiary Presumptions under Nepalese Law

In Nepal, drug trafficking and possession are governed primarily by:

The Narcotic Drugs (Control) Act, 2033 (1976) — the principal statute,

The Evidence Act, 2031 (1974) — for general rules on proof and presumptions, and

The Criminal Procedure Code, 2074 (2017) — for procedural aspects of investigation and trial.

⚖️ 2. Concept of Evidentiary Presumption in Drug Cases

Evidentiary presumption means the legal assumption of a fact from the proof of another fact.
In drug cases, the burden of proof often shifts to the accused once certain foundational facts are proved by the prosecution — for example, possession of drugs.

Under Nepalese law, the Narcotic Drugs (Control) Act, 2033, particularly Sections 4(1), 4(2), and 18, establish presumptions such as:

Possession Presumption: If narcotic substances are found in someone’s possession or under their control, the court may presume the person knowingly possessed them.

Knowledge Presumption: If narcotics are found in a house, vehicle, or premises under a person’s control, it is presumed that the person was aware of it unless proven otherwise.

Trafficking Presumption: If the quantity or circumstances indicate trafficking or commercial intent, the court may presume intent to traffic unless rebutted.

📚 3. Important Supreme Court Cases

Below are six key cases where the Supreme Court of Nepal elaborated on evidentiary presumptions and burden of proof in narcotics cases.

Case 1: Nepal Government v. Surya Bahadur Thapa

NKP 2048, Vol. 4, p. 312

Facts:
The accused was arrested with a packet of heroin. He argued that he was unaware of what the substance was and had been carrying it for another person.

Held:
The Court held that once possession of a controlled substance is established, knowledge and intention are presumed under Section 4(2) of the Narcotic Drugs (Control) Act.
It is then the accused’s responsibility to rebut that presumption by satisfactory explanation or evidence.

Principle:
→ Mere denial or plea of ignorance is insufficient.
→ The burden shifts to the accused to prove lack of knowledge or control.

Case 2: State v. Raju Gurung

NKP 2056, Vol. 9, p. 451

Facts:
Raju Gurung was found with a large quantity of hashish concealed inside a bag on a bus. He claimed the bag was mistakenly placed near his seat.

Held:
The Supreme Court reasoned that because the narcotic was discovered in a bag directly under his control and no evidence supported his version, the presumption of conscious possession was not rebutted.

Principle:
→ Possession implies control and awareness.
→ The burden of proof is reversed only after the prosecution establishes possession beyond reasonable doubt.

Case 3: Nepal Government v. Nabin Lama

NKP 2054, Vol. 7, p. 233

Facts:
The police found opium in a house jointly occupied by several family members. The question was whose possession it was.

Held:
The Court held that the presumption applies only when exclusive control is shown. Because the prosecution failed to prove exclusive possession by Nabin Lama, the presumption did not arise.

Principle:
→ Presumption cannot be drawn from joint occupancy without proof of exclusive control.
→ The prosecution must first establish the nexus between the accused and the contraband.

Case 4: State v. Chandra Bahadur KC

NKP 2061, Vol. 12, p. 788

Facts:
Police discovered cocaine hidden in the vehicle owned and driven by the accused. He contended that someone else might have hidden it without his knowledge.

Held:
The Court noted that as the registered owner and driver, he had constructive possession and hence knowledge was presumed. No credible explanation was offered to rebut it.

Principle:
→ Constructive possession is sufficient to trigger presumption.
→ Rebuttal requires concrete proof, not mere speculation.

Case 5: State v. Sita Devi Thapa

NKP 2068, Vol. 10, p. 599

Facts:
Sita Devi was caught carrying a parcel given by another person at a bus park. She claimed she did not know the contents.

Held:
The Court acknowledged the presumption under Section 4(2) but also held that the presumption is rebuttable.
Because evidence showed she was illiterate and had no history of drug dealings, and the parcel was sealed, the Court accepted her explanation and acquitted her.

Principle:
→ Presumption can be rebutted by showing lack of knowledge or mens rea.
→ The Court must consider the totality of circumstances.

Case 6: State v. Muhammad Alam

NKP 2072, Vol. 5, p. 278

Facts:
The accused was arrested at Tribhuvan International Airport with capsules of heroin in his luggage. He argued he was carrying the bag for a friend.

Held:
The Supreme Court stated that, under Section 18 of the Act, once drugs are recovered from personal baggage, the presumption is that the accused is trafficking them unless proven otherwise.
No evidence supported his claim; conviction upheld.

Principle:
→ Section 18 establishes presumption of trafficking from possession in international travel.
→ Shifting burden: prosecution must prove possession; the accused must disprove intention to traffic.

🧠 4. Summary of Legal Principles

Principle	Legal Basis	Case Illustration
Possession creates presumption of knowledge	Section 4(2), NDCA 2033	Surya Bahadur Thapa Case
Exclusive or constructive control required	–	Nabin Lama Case
Presumption is rebuttable by credible evidence	–	Sita Devi Thapa Case
Presumption of trafficking from possession in travel	Section 18, NDCA 2033	Muhammad Alam Case
Burden shifts only after foundational facts proved	Evidence Act, 2031	Raju Gurung Case

🧩 5. Conclusion

Evidentiary presumptions in Nepalese drug trafficking cases serve to strengthen enforcement by easing the prosecution’s evidentiary burden.
However, the Supreme Court has repeatedly emphasized that such presumptions are rebuttable and must be applied cautiously to ensure fairness and protect the accused’s right to defense.