Doctrine Of Constructive Possession:
Invoking the doctrine of “constructive possession”, Supreme Court recently ruled that watching child pornography over the Internet without downloading would also amount to “possession”, in terms of Section 15 of the POCSO Act, provided the person had a degree of control over such material.
- It is a legal doctrine that attributes possession of an item or substance to an individual, even if they do not have physical control or immediate possession of it.
- In criminal law, constructive possession arises when a person has the intention and ability to exercise control over the item or substance, either individually or jointly with others.
- Unlike actual possession, which involves physical custody or control, constructive possession is based on the concept that an individual can still be held responsible for items they have the power to control, even if those items are not physically on their person.
- The key element is the intent and capability to exercise dominion or control over the object or substance.
Constructive possession allows a person who does not actually have personal possession of something, yet still controls it, to be charged with a crime for possessing it. - Constructive possession often arises in cases involving illegal drugs, firearms, or stolen property, where the defendant may not have direct physical possession but has control or access to the item.
- For a successful prosecution of constructive possession, certain criteria must be met.
- These include:
- Knowledge of the Item’s Presence: The individual must be aware that the item exists. Mere proximity to an item without knowledge does not constitute constructive possession.
- Ability to Exercise Control: The person must have the capability to maintain dominion over the item. This means having the power and intention to control its use.
- Intent to Possess: There must be an intent to possess the item. This can often be inferred from circumstances, such as the location of the item and the individual’s actions or statements.
