# Manoj Tejraj Jain v. State of Gujarat

- **Citation:** 2025 INSC 1090
- **Court:** Supreme Court of India
- **Decided:** 2025-08-28
- **Bench:** J.B. Pardiwala, K.V. Viswanathan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manoj-tejraj-jain-v-state-of-gujarat-38503
- **Pages:** 30

## Headnote

Challenge to the judgment of the High Court whereby the appeals
filed by the appellants herein were dismissed against the judgment
of the trial court convicting them for offences u/ss.25A and 29,
Narcotic Drugs and Psychotropic Substances Act, 1985.
Headnotes†
Narcotic Drugs and Psychotropic Substances Act, 1985 -
ss.25A, 29, 35, 54, 9A - Punishment for contravention of
orders made u/s.9A - Punishment for abetment and criminal
conspiracy - Narcotic Drugs and Psychotropic Substances
(Regulation of Controlled Substances) Order 2013 - Case of
prosecution that when ATS raided a godown, which was found
to have been leased out to 'NK' (one of the four appellants),
recovery of 55 boxes containing Ephedrine powder (a
controlled substance used for manufacturing decongestant
syrup) weighing 1364 kgs was made - Other three appellantsco-accused were implicated on the basis of the confessional
statement of 'NK' made during aforesaid search and seizure -
Appellants were convicted by the Trial Court u/ss.25A and
29 - Appeals filed by the appellants, dismissed by High
Court - Challenge to:
Held: 1.1 Ephedrine is a controlled substance and its manufacture,
distribution, sale, purchase, possession, storage and consumption
are subject to control as specified in the Order 2013 - The
contravention of orders is made punishable u/s.25A. [Para 39]
1.2 Further, to fasten the liability u/s.29, the prosecution must
prove that there was abetment; conspiracy denoting that there
was meeting of mind between the owner and the other accused
and common object and in pursuance of that common object an
agreement took place to commit an offence; some overt act was
2438
[2025] 8 S.C.R.
Supreme Court Reports
done in furtherance of such agreement - When the above elements
are present in the form of evidence, the liability u/s.25A and/or
s.29 can be fastened on any person - The evidence means, the
evidence in shape of police papers, as well as evidence recorded
by the court during trial. [Paras 40, 41]
1.3 When the raid was carried out, 'NK' was found to be present
at the place where the godown is situated - He was found to be
in possession and control of the godown - The search undertaken
ultimately resulted in recovery of 55 boxes of ephedrine powder
weighing 1364 Kgs - On the basis of some evidence on record, it
can be said that 'NK' was found to be in conscious possession of
the contraband - Even if the panchas in whose presence the search
was undertaken failed to support the case of the prosecution and
were declared hostile, it cannot be said that the entire recovery is
unbelievable - Moreover, 'NK' failed to offer any explanation in his
s.313, CrPC statement, except total denial - s.54 invoked so far
as 'NK' is concerned - Therefore, High Court committed no error
in affirming the judgment and order of conviction passed by the
Trial Court so far as NK is concerned, however his sentence is
reduced to the period already undergone. [Paras 43, 46-51, 70, 71]
1.4 As regards other co-accused persons, the mere alleged
confessional statement of co-accused, 'NK' at the time of his arrest
can also not be made the basis of conviction - Statement of 'NK'
sought to be relied upon is not one recorded under s.67 - When
the raid was carried out at the godown and 'NK' was apprehended,
at that point of time his statement was recorded - This statement
said to have been made by 'NK' has no evidentiary value.
[Paras 61, 64]
1.5 Even otherwise, the Court should not start with the confession
of an accused - The Court should first marshal the facts on record
and look into the other legal evidence if any - It is only if the
Court finds some legal evidence on record that it can bring the
confession or use the confession of an accused in aid of such
legal evidence - Other appellants are acquitted of all the charges
framed against them. [Paras 65, 73]
Narcotic Drugs and Psychotropic Substances Act, 1985 - ss.35,
54 - Presumption of culpable mental state - Presumption
from possession of

## Text

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[2025] 8 S.C.R. 2437 : 2025 INSC 1090
Manoj Tejraj Jain
v.
State of Gujarat
(Criminal Appeal No(s). 5179-5181 of 2024)
28 August 2025
[J.B. Pardiwala and K.V. Viswanathan, JJ.]
Issue for Consideration
Challenge to the judgment of the High Court whereby the appeals
filed by the appellants herein were dismissed against the judgment
of the trial court convicting them for offences u/ss.25A and 29,
Narcotic Drugs and Psychotropic Substances Act, 1985.
Headnotes†
Narcotic Drugs and Psychotropic Substances Act, 1985 -
ss.25A, 29, 35, 54, 9A - Punishment for contravention of
orders made u/s.9A - Punishment for abetment and criminal
conspiracy - Narcotic Drugs and Psychotropic Substances
(Regulation of Controlled Substances) Order 2013 - Case of
prosecution that when ATS raided a godown, which was found
to have been leased out to 'NK' (one of the four appellants),
recovery of 55 boxes containing Ephedrine powder (a
controlled substance used for manufacturing decongestant
syrup) weighing 1364 kgs was made - Other three appellantsco-accused were implicated on the basis of the confessional
statement of 'NK' made during aforesaid search and seizure -
Appellants were convicted by the Trial Court u/ss.25A and
29 - Appeals filed by the appellants, dismissed by High
Court - Challenge to:
Held: 1.1 Ephedrine is a controlled substance and its manufacture,
distribution, sale, purchase, possession, storage and consumption
are subject to control as specified in the Order 2013 - The
contravention of orders is made punishable u/s.25A. [Para 39]
1.2 Further, to fasten the liability u/s.29, the prosecution must
prove that there was abetment; conspiracy denoting that there
was meeting of mind between the owner and the other accused
and common object and in pursuance of that common object an
agreement took place to commit an offence; some overt act was
2438
[2025] 8 S.C.R.
Supreme Court Reports
done in furtherance of such agreement - When the above elements
are present in the form of evidence, the liability u/s.25A and/or
s.29 can be fastened on any person - The evidence means, the
evidence in shape of police papers, as well as evidence recorded
by the court during trial. [Paras 40, 41]
1.3 When the raid was carried out, 'NK' was found to be present
at the place where the godown is situated - He was found to be
in possession and control of the godown - The search undertaken
ultimately resulted in recovery of 55 boxes of ephedrine powder
weighing 1364 Kgs - On the basis of some evidence on record, it
can be said that 'NK' was found to be in conscious possession of
the contraband - Even if the panchas in whose presence the search
was undertaken failed to support the case of the prosecution and
were declared hostile, it cannot be said that the entire recovery is
unbelievable - Moreover, 'NK' failed to offer any explanation in his
s.313, CrPC statement, except total denial - s.54 invoked so far
as 'NK' is concerned - Therefore, High Court committed no error
in affirming the judgment and order of conviction passed by the
Trial Court so far as NK is concerned, however his sentence is
reduced to the period already undergone. [Paras 43, 46-51, 70, 71]
1.4 As regards other co-accused persons, the mere alleged
confessional statement of co-accused, 'NK' at the time of his arrest
can also not be made the basis of conviction - Statement of 'NK'
sought to be relied upon is not one recorded under s.67 - When
the raid was carried out at the godown and 'NK' was apprehended,
at that point of time his statement was recorded - This statement
said to have been made by 'NK' has no evidentiary value.
[Paras 61, 64]
1.5 Even otherwise, the Court should not start with the confession
of an accused - The Court should first marshal the facts on record
and look into the other legal evidence if any - It is only if the
Court finds some legal evidence on record that it can bring the
confession or use the confession of an accused in aid of such
legal evidence - Other appellants are acquitted of all the charges
framed against them. [Paras 65, 73]
Narcotic Drugs and Psychotropic Substances Act, 1985 - ss.35,
54 - Presumption of culpable mental state - Presumption
from possession of illicit articles - 'Rule or Principle of
Foundational Facts':
[2025] 8 S.C.R.
2439
Manoj Tejraj Jain v. State of Gujarat
Held: Before the statutory presumption of culpable mental state
could be validly invoked, the prosecution must first establish certain
foundational facts - These foundational facts typically involve
or correspond to proving those facts or elements that cogently
establish the actus reus required for the offence alleged by the
prosecution - It is only after such foundational facts have been
proved beyond a reasonable doubt that the prosecution may take
recourse of the statutory presumption provided by the legislature -
Rationale behind, explained - Unless the prosecution is able to
prove foundational facts in the context of the allegations made
against the accused under any specific provision of the NDPS Act
as the case may be, the statutory presumption of culpable mental
state u/s.35 will not come into play - Presumption u/s.35, when
rebutted, stated. [Paras 57-60]
Narcotic Drugs and Psychotropic Substances Act, 1985 - ss.35,
54 - Case of prosecution that when ATS raided a godown,
which was found to have been leased out to 'NK' (one of the
four appellants), recovery of 55 boxes containing Ephedrine
powder (a controlled substance) weighing 1364 kgs was
made - Appellants (NK and the other three co-accused) were
convicted u/s.25A and 29 - Plea of the three co-accused that
there was no legal evidence or any cogent material connecting
them with the seizure of ephedrine powder - Thus, the Courts
below erred in straightway raising the presumption u/s.35 - It
was also submitted that nothing incriminating was recovered
or seized from their possession hence, the presumption u/s.54
would also not come into operation:
Held: Before the statutory presumption of culpable mental state
could be validly invoked, the prosecution must first establish
certain foundational facts - These foundational facts typically
involve or correspond to proving those facts or elements that
cogently establish the actus reus required for the offence alleged
by the prosecution - It is only after such foundational facts have
been proved beyond a reasonable doubt that the prosecution
may take recourse of the statutory presumption provided by the
legislature - Unless the prosecution is able to prove foundational
facts in the context of the allegations made against the accused
under any specific provision of the NDPS Act as the case may
be, the statutory presumption of culpable mental state u/s.35 will
not come into play - Three co-accused-appellants acquitted of all
the charges framed against them. [Para 57]
2440
[2025] 8 S.C.R.
Supreme Court Reports
Narcotic Drugs and Psychotropic Substances Act, 1985 -
s.9A - Power to control and regulate controlled substances -
Offence u/s.9A - Essential requisite for the constitution of,
stated. [Para 37]
Case Law Cited
Noor Aga v. State of Punjab [2008] 16 SCR 379 : (2008) 16 SCC
417; Kashmira Singh v. State of M.P. [1952] 1 SCR 526 : (1952)
1 SCC 275; Chandrakant Chimanlal Desai v. State of Gujarat
(1992) 1 SCC 473; Haricharan Kurmi v. State of Bihar [1964] 6
SCR 623 : (AIR) 1964 SC 1184; State of Tamil Nadu v. Nalini
[1999] 3 SCR 1 : (1999) 5 SCC 253 - relied on.
Mukesh Singh v. State [2020] 9 SCR 245 : (2020) 10 SCC 120;
State of Punjab v. Baldev Singh [1999] 3 SCR 977 : (1999) 6
SCC 172 - referred to.
List of Acts
Narcotic Drugs and Psychotropic Substances Act, 1985; Code of
Criminal Procedure, 1973; Evidence Act, 1872; Narcotic Drugs and
Psychotropic Substances (Regulation of Controlled Substances)
Order 2013.
List of Keywords
Raid; Godown raided; Ephedrine powder; Recovery of ephedrine
powder; Controlled substance; Foundational facts; Sections 25A,
29, Narcotic Drugs and Psychotropic Substances Act, 1985;
Presumption under section 35, Narcotic Drugs and Psychotropic
Substances Act, 1985; Presumption of culpable mental state;
Presumption from possession of illicit articles; Conscious
possession of contraband; Recovery; Search & Seizure; Beyond
reasonable doubt; Clues gathered from the confessional statement;
Alleged confessional statement; Statutory presumption.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
5179-5181 of 2024
From the Judgment and Order dated 08.09.2023 of the High Court
of Gujarat at Ahmedabad in CRA No. 2349 of 2019, CMA NO. 2
of 2022, and CMA NO. 1 of 2023
[2025] 8 S.C.R.
2441
Manoj Tejraj Jain v. State of Gujarat
With
Criminal Appeal No(s). 5184-5185 and 5182-5183 of 2024, Criminal
Appeal No(s). 1492-1493 of 2025
Appearances for Parties
Advs. for the Appellant:
Nikhil Goel, Sr. Adv., Ashutosh Ghade, Ms. Riddhi Jain, Ms. Saloni
Meshram, Nirmit Reddy, Prasannan Namboodiri, Vinay Vats,
Mrs. Prathibha Namboodiri, Harshal Gupta, Shashwat Parihar,
Rishabh Kumar, Ishan Parashar, Shashwat Anand, Shashank
Singh, Praveen Kumar Jha, R. Krishna Morthi, Shoaib Akhtar,
Purushottam, Jai Vardhan, Dhurv Goswami, Virender Khitoliya,
N. Sakthivel, Praveen Kumar Jha.
Advs. for the Respondent:
Ms. Ruchi Kohli, Sr. Adv., Ms. Swati Ghildiyal, Ms. Devyani Bhatt,
Ms. Srishti Mishra.
Judgment / Order of the Supreme Court
Order
1.
Since the issues raised in all the captioned appeals are the same and
the challenge is also to the self-same Judgment and Order passed
by the High Court, those were taken up for hearing analogously and
are being disposed of by this common Judgment and Order.
2.
These appeals are at the instance of four convicts and are directed
against the self-same Judgment and Order passed by the High
Court of Gujarat dated 8-9-2023 in Criminal Appeal Nos.2328/2019,
2349/2019, 5184-5185/2024 and 2298/2019 respectively, by which
the High Court dismissed all the appeals preferred by the convicts
and thereby affirmed the Judgment and Order of conviction dated
7-10-2019 passed by the Additional Sessions Judge, Ahmedabad
(Rural) Mirzapur at Ahmedabad in the NDPS Case No.4/2016, NDPS
Case No.6/2016 and NDPS Case No.2/2017 respectively.
3.
It appears from the materials on record that in all six persons
including the four appellants herein before us were put to trial in the
Court of Additional Sessions Judge, Ahmedabad (Rural), Mirzapur
at Ahmedabad in connection with the NDPS Case Nos. 6 of 2016,
2 of 2017 and 4 of 2016 respectively for the offence punishable
2442
[2025] 8 S.C.R.
Supreme Court Reports
under Sections 25A and 29 respectively of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short, "the NDPS Act").
4.
The trial court held all the accused persons put to trial, guilty of
the offences they were charged with as enumerated above and
sentenced them to undergo ten years of rigorous imprisonment with
fine of Rs. 1,00,000/- each.
5.
It all started with a First Information Report dated 14.04.2016 lodged
by one Shri. V. R. Malhotra Inspector of Police ATS Ahmedabad.
The same came to be registered as FIR No. 2 of 2016.
6.
It appears that the first person to be arrested was Narendra Dhirajlal
Kacha, the appellant in Criminal Appeal Nos.1492-1493 of 2025.
7.
It is the case of the prosecution that on the basis of a secret
information, the officials of the ATS raided a godown situated in
Village Vahelal, Taluka Daskroi, District Ahmedabad. This godown
was found to have been taken on lease by Narendra Kacha, from a
person named Jayeshbhai Patel owner of M/s. MD Steel.
8.
The search of the godown led to recovery of 55 boxes containing
Ephedrine powder weighing 1364 Kgs. This ephedrine powder is a
controlled substance used for manufacturing decongestant syrup.
9.
According to the case of the prosecution, Narendra Kacha, at the
time of search and seizure, is said to have made a confessional
statement before the officials of the ATS implicating himself and
other co-accused in so far as the seizure of Ephedrine powder is
concerned. It is on the strength of such statement that the ATS got
some clues and was able to reach up to the other accused persons
including the appellants herein.
10. Upon completion of investigation, charge-sheets came to be filed in
the Court of 10th Additional Sessions Judge, Ahmedabad (Rural) at
Mirzapur, Ahmedabad.
11. The filing of the charge-sheets culminated in the NDPS Case
No.4/2016, NDPS Case No.6/2016 and NDPS Case No.2/2017
respectively.
12. The Trial Court thereafter proceeded to frame charge against the
accused persons vide order dated 23-2-2018. Although separate
charges were framed yet substantially, they read as under:
[2025] 8 S.C.R.
2443
Manoj Tejraj Jain v. State of Gujarat
"1. That the accused persons had organised a meeting on
9.1.2016 in Hotel Blizz at Mombasa in Kenya;
2. Manoj Jain, who owns a company named Avon Life
situated at Solhapur in Maharashtra would export the
"Ephedrine" to Kenya @ Rs. 60,000/- KG;
3. Export would be done with the help of accused viz.
Kishore Rathod;
4. The receiver Vikky Goswamy sent Rs. 91,90,000/-
towards the part payment through angadiyas which was
received by the co-accused in different proportions;
5. To make Ephedrine colourless, the same was transported
from Solhapur, without any permit, to accused Narendra
Kacha to his Chemical Factory which he was operating in
a shed of a company called MD Steels. The transportation
was done through truck No. GJ-12-AT-8544 and its driver
was one Rajendrasingh Parmar PW-2;
6. At the premises of Narendra Kacha, a raid was carried
out based on secret information."
13. In the course of the trial, the prosecution examined the following
witnesses:-
"PW
no.
Name
Position
Particulars/Designation of
the PW
EXH
No.
PW
1
Hemang
Dineshbhai
Sheth
Witness examined to prove
that he went to Kenya
with co-accused persons
including Kishorsinh
Rathod and Jay Mukhi
19
PW
2
Rajendrasinh
Pravinsinh
Parmar
Driver of truck used to
deliver consignment of
Ephedrine
20
PW
3
Ajitsinh
Ranchodbhai
Kathiya
Owner of truck used
by accused to deliver
consignment of Ephedrine
21
PW
4
Yogi
Bhadreshbhai
Vyas
Travel Agent who allegedly
booked tickets to Kenya
26
2444
[2025] 8 S.C.R.
Supreme Court Reports
PW
5
Firozbhai
Mommadbhai
Mansuri
Driver of Truck hired by
ATS which picked up
Ephedrine from shed in
Ahmedabad
27
PW
6
Pareshbhai
Sureshbhai
Patel
Employee of Accused
Narendrabhai Dhirajal
Kacha (or Narendra Kacha
in short) working in shed
rented from MD Steel
Factory
29
PW
7
Jayeshbhai
Maganbhai
Patel
Owner of MD Steel which
let out its shed to accused
Narendra Kacha
30
PW
8
Dineshbhai
Somabhai
Prajapati
Employee of MD Steel
36
PW
9
Bhagabhai
Fuiabhai
Solanki
Employee of MD Steel
37
PW
10
Mukeshbhai
Nanubhai Patel
Person who introduced
accused Narendra Kacha
to the owner of the Shed
(PW 7)
38
PW
11
Baseshwar
Shantiling
Khandal
Production Manager
of Avon Life Sciences
Ltd (in Short "Avon"),
Solapur Maharashtra
[where Ephedrine was
manufactured]
40
PW
12
Umeshbhai
Prataprao
Bhosle
HR Manager (Avon)
41
PW
13
Prabhakar
Gundopant
Hajare
Store Assistant (Avon)
42
PW
14
Rakeshbhai
Gordhanbhai
Gajjar
Panch witness of Search
and Seizure of Ephedrine
45
[2025] 8 S.C.R.
2445
Manoj Tejraj Jain v. State of Gujarat
PW
15
Brijen
Dilipkumar
Mehta
Panch witness of Search
and Seizure of Ephedrine
47
PW
16
Kirtibhai
Arvindbhai Shah
Owner of SIM card alleged
to be used by accused
persons during conspiracy
49
PW
17
Jayesh
Bakabhai
Panchal
Owner of SIM card alleged
to be used by accused
persons during conspiracy
50
PW
18
Dhruvin
Ashokbhai Patel
Owner of SIM card alleged
to be used by accused
persons during conspiracy
51
PW
19
Ajit Annu
Kaamat
One of the Directors of
Avon
52
PW
20
Rajendra
Padbhanabhan
Kemal
One of the Directors of
Avon
53
PW
21
Harishbhai
Chhajuram
Dhanka
Owner of SIM card alleged
to be used by accused
person during conspiracy
54
PW
22
Dinesh
Harishbhai
Dhanka
Owner of SIM card alleged
to be used by accused
person during conspiracy
55
PW
23
Harshadbhai
Flaribhai
Sohiliya
Owner of SIM card alleged
to be used by accused
person during conspiracy
56
PW
24
Mahendrakumar
Manilal
Morakhiya
Partner of Angadiya firm
(vijay Vikram & Co.)
58
PW
25
Babubhai
Shankarlal Patel
Partner of Angadiya firm
(vijay Vikram & Co.)
59
PW
26
Jaysinh
Dipaksinh
Chauhan
Panch-witness of Truck
GJ12AT 8544 used to
transport Ephedrine by
Accused Narendra Kacha
60
PW
27
Magendra
Baliram
Aagvane
Security Person at Avon's
premises
61
2446
[2025] 8 S.C.R.
Supreme Court Reports
PW
28
Baweshwar
Ghyanoba
Venapure
Security Person at Avon's
premises
62
PW
29
Sandeep
Sureshbhai
Modi
PSO at ATS Police Station,
received complaint from
(PW 39 (informant) and
recovered Mudammal
63
PW
30
Jayantiiai
Babuial
Dhodhara
PSO at ATS Police Station
65
PW
31
Ranjitsinh
Shivubha
Rathod
Police constable -
received samples and FSL
Report
69
PW
32
Pradipsinh
Dilipsinh
Vaghela
Gave samples to FSL
70
PW
33
Amraji
Harchandji
Crime writer - received
samples and kept in locker
71
PW
34
Mohmmad Sajid
Abdul Khalid
Sumra
Crime writer and recovered
Mudammal
72
PW
35
Pravinsinh
Ghanshyamsinh
Parmar
Driver of Police vehicle
used by raiding team
73
PW
36
Nitinkumar
Chandulal
Thakkar
Person known to
accused Bharatsinh and
Kishoresinh and alleged to
have visited Mumbai with
them
75
PW
37
Kishor
Kameshwar Jha
Owner of Hotel Sunshine
at Mumbai
76
PW
38
Rashminkumar
Khemchandbhai
Solanki
Police Inspector, First
Informant & Member of
Raiding Team
77
PW
39
Vijaykumar
Rameshbhai
Malhotra
Police Inspector, First
Informant & Member of
Raiding Team
79
[2025] 8 S.C.R.
2447
Manoj Tejraj Jain v. State of Gujarat
PW
40
Amrutlal
Vashrambhai
Hingrajiya
Asst. Director, FSL
Gandhinagar
96
PW
41
Manishkumar
Hasmukhrai
Thakar
Investigating Officer
111
PW
42
Maheshbhai
Chaturbhai
Nayak
Asst. Investigating Officer
137"
14. The prosecution also relied upon few pieces of documentary evidence.
15. Upon closure of recording of evidence by the prosecution, the further
statements of the accused persons were recorded under Section
313 of the Code of Criminal Procedure, 1973 (CrPC).
16. All the accused persons in their individual statements stated that
they were innocent and had been falsely roped in the alleged crime.
17. The Trial Court, upon appreciation of oral evidence as well as the
documentary evidence on record, held all the accused persons guilty
of the alleged offence.
18. The operative part of the Trial Court's judgment reads thus:-
"Hence, considering all the above factors this Court is
of the opinion that imposing a sentence lesser than the
maximum prescribed for the offence will not be just and
proper; to the contrary it will be too inadequate to serve
the purpose with which the legislation has been enacted.
Accordingly, in my opinion the maximum sentence is
required to be imposed on each of the convict to serve
the ends of justice in this case. I, therefore, sentence the
convicts herein as under: -
The convicts Narendrabhai Dhirajlal Kacha, Punit Ramesh
Shringi, Manoj Tejraj Jain, Jay @ Jay Mukhi, Kishoresinh,
Bhavsinh Rathod and Bharatsinh Ranjitsinh Kathiya are,
hereby, sentenced for offence under section 25-A of the
Narcotics Drugs & Psychotropic Substances Act, 1985 with
rigorous imprisonment for a term of Ten (10) years and a
fine of Rupees One Lack (Rs. 1,00,000/-) each.
2448
[2025] 8 S.C.R.
Supreme Court Reports
The convicts Narendrabhai Dhirajlal Kacha, Punit Ramesh
Shringi, Manoj Tejraj Jain, Jay @ Jay Mukhi, Kishoresinh
Bhavsinh Rathod and Bharatsinh Ranjitsinh Kathiya are
sentenced for offence under section 29 of the Narcotics
Drugs & Psychotropic Substances Act, 1985 with Rigorous
Imprisonment for a term of Ten (10) years and a fine of
Rupees One Lack (Rs. 1,00,000/-) each.
Both the sentences shall run concurrently.
In default of payment of fine the accused shall have to
undergo rigorous imprisonment of six months in addition
to the sentence awarded above.
The accused are in jail since the inception of the case,
they shall be given the benefit of Section 428 of the Code
of Criminal Procedure, 1973 in computing the period of
sentence.
Accused Narendrabhai Dhirajlal Kacha, Punit Ramesh
Shringi, Manoj Tejraj Jain, Kishoresinh Bhavsinh Rathod
and Bharatsinh Ranjitsinh Kathiya are present from
Sabarmati Central Prison; they be sent back to the Central
Prison along with the jail warrants for serving the sentence
as awarded above.
Accused Jay @ Jaymukhi is confined in Taloja Central
Prison, Maharashtra; he remained present through Video
Conferencing and made aware of the judgment as well
as sentence. His legal aid-counsel Mr. J. M. Pathan is
present in person; his jail warrant and a true copy of this
judgment be sent to that Jail forthwith.
The order is pronounced in the open court on this 07th
day of October, 2019 in the presence of all the convicts
(accused Jay @ Jaymukhi remained present through
video conferencing) their Learned Advocates and Learned
Assistant Public Prosecutor."
19. The appellants - herein being dissatisfied with the judgment and
order of conviction passed by the Trial Court went in appeal before
the High Court.
[2025] 8 S.C.R.
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Manoj Tejraj Jain v. State of Gujarat
20. As noted above, all the appeals were taken up for hearing together
and those came to be dismissed by the High Court vide the common
impugned Judgment and Order dated 8-9-2023.
21. In such circumstances, referred to above, the appellants are here
before this Court with their respective appeals.
22. We heard Mr. Prasannan Namboodiri, the learned counsel appearing
for the appellant - Manoj Tejraj Jain in Criminal Appeal Nos.51795181/2024 respectively Mr. Nikhil Goel, the learned Senior counsel
appearing for the appellant - Mr. Kishorsinh Bhavsinh Rathor
in Criminal Appeal Nos.5184-5185/2024 respectively and Mr.
R.Krishnamoorthi, the learned counsel appearing for the appellants -
Mr. Bharatsinh Ranjitsinh Kathiya and Narendrabhbai Dhirajlal Kacha
in Criminal Appeals Nos.5182-5183/2024 and Criminal Appeal
Nos.1492-1493/2025 respectively.
23. We are at pains to observe that although the High Court has laboured
to dictate a judgment running into more than 141 pages yet all that
has been observed by the High Court was not at all necessary as
the High Court failed to address itself on the core issues.
24. The High Court from pages 1 to 15 respectively of its impugned
judgment has recorded the case of the prosecution and has included
the list of prosecution witnesses examined during the trial and the
list of documents exhibited by the prosecution.
25. From para 9, the High Court starts recording the submissions
canvassed on behalf of the appellants in their respective appeals
which continue till para 13.
26. From para 14, the arguments of prosecution/State have been
recorded till Para 16.
27. From paras 17 to 21 respectively, the High Court has noted the
findings of the Trial Court as regards the compliance of Sections 42,
50, 52 and 57 of the NDPS Act respectively. The High Court has
not returned any findings of its own but agreed with the findings of
the trial court and without any further discussion concluded in para
21 as under:
"Considering the evidence available on record and the
decision cited at the bar, I am of the considered opinion
that the present appeals filed by the respective appellants
deserve to be dismissed."
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28. Till the aforesaid, no evidence of conspiracy or violation of Section
9A has been discussed or analysed nor any finding has been given.
29. From paras 22 to 23.9 respectively, the High Court has discussed
the judgment of this Court in Mukesh Singh v. State reported in
(2020) 10 SCC 120 to hold that merely because the informant police
officer himself investigated the case, would not by itself vitiate the
investigation. The High Court holds that though the panch witnesses
in the case had turned hostile yet their evidence deserved to be
scrutinised closely and notes that prosecution has examined police
witnesses PW 29 to PW 35, PW 38 and PW 41 in support of its case.
30. In para 23.10, the High Court records as under:
"23.10. The witnesses have been cross-examined at length
by all the defence counsel but the merits and demerits of
these cross examinations shall be discussed in the later
part of the judgment while appreciating the entire evidence
of the case."
31. We looked into the entire oral evidence on record.
ANALYSIS
32. Section 9A of the NDPS Act provides for the power to control and
regulate controlled substances. Section 9A reads thus:
"9A. Power to control and regulate controlled substances.-
(1) If the Central Government is of the opinion that,
having regard to the use of any controlled substance in
the production or manufacture of any narcotic drug or
psychotropic substance, it is necessary or expedient so
to do in the public interest, it may, by order, provide for
regulating or prohibiting the production, manufacture,
supply and distribution thereof and trade and commerce
therein.
(2) Without prejudice to the generality of the power
conferred by sub-section (1), an order made thereunder
may provide for regulating by licences, permits or
otherwise, the production, manufacture, possession,
transport, import inter-State, export inter-State, sale,
purchase, consumption, use, storage, distribution, disposal
or acquisition of any controlled substance."
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Manoj Tejraj Jain v. State of Gujarat
33. Section 25A of the NDPS Act provides for the punishment for
contravention of orders made under Section 9A. Section 25A reads
thus:
"25A. Punishment for contravention of orders made under
section 9A.-If any person contravenes an order made
under section 9A, he shall be punishable with rigorous
imprisonment for a term which may extend to ten years
and shall also be liable to fine which may extend to one
lakh rupees:
Provided that the court may, for reasons to be recorded in
the judgment, impose a fine exceeding one lakh rupees.]"
34. Section 29 of the NDPS Act provides for the punishment for abetment
and criminal conspiracy. Section 29 reads thus:
"29. Punishment for abetment and criminal conspiracy.-
(1) Whoever abets, or is a party to a criminal conspiracy
to commit, an offence punishable under this Chapter,
shall, whether such offence be or be not committed
in consequence of such abetment or in pursuance of
such criminal conspiracy, and notwithstanding anything
contained in section 116 of the Indian Penal Code (45 of
1860), be punishable with the punishment provided for
the offence.
(2) A person abets, or is a party to a criminal conspiracy
to commit, an offence, within the meaning of this section,
who, in India, abets or is a party to the criminal conspiracy
to the commission of any act in a place without and beyond
India which-
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to
narcotic drugs or psychotropic substances having all the
legal conditions required to constitute it such an offence
the same as or analogous to the legal conditions required
to constitute it an offence punishable under this Chapter,
if committed within India."
35. Section 35 of the NDPS Act provides for the presumption of culpable
mental state. Section 35 reads thus:
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"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."
36. Section 54 of the NDPS Act provides for presumption from possession
of illicit articles. Section 54 reads thus:
"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."
37. From the above it is clear that the essential requisite for the constitution
of offence under Section 9A is the use of any controlled substance in
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Manoj Tejraj Jain v. State of Gujarat
the production or manufacture of any narcotic drug or psychotropic
substance. If the Central Government deems it expedient in the
public interest, it may by order provide for regulating or prohibiting
the production, manufacture, supply and distribution thereof and
trade and commerce of the controlled substance.
38. The Schedule to the Narcotic Drugs and Psychotropic Substances
(Regulation of Controlled Substances) Order 2013 (for short, "Order
2013") under clause 2(d) includes ephedrine and its salts.
39. Thus, ephedrine is a controlled substance and its manufacture,
distribution, sale, purchase, possession, storage and consumption are
subject to control as specified in the Order 2013. The contravention
of orders is made punishable under Section 25A of the Act 1985. The
punishment provided under Section 25A is rigorous imprisonment
for a term which may extend to ten years and shall also be liable to
fine which may extend to Rs. 1,00,000/-.
40. Likewise, to fasten the liability under Section 29 of the NDPS Act,
the prosecution must prove that (i) there was abetment, (ii) there was
conspiracy denoting that there was meeting of mind; between the
owner and the other accused and common object and in pursuance
of that common object an agreement took place to commit an offence
(iii) some overt act was done in furtherance of such agreement.
41. When the above elements are present in the form of evidence, the
liability under Section 25A and/or Section 29 of the NDPS Act can
be fastened on any person. The evidence means, the evidence in
shape of police papers, as well as evidence recorded by the court
during trial.
42. We first take up the appeal of the convict Narendra Kacha.
43. Narendra Kacha is the person who had taken the godown on lease
from the Company M/s. MD Steel. When the raid was carried out,
Narendra Kacha was found to be present at the place where the
godown is situated. He was found to be in possession and control
of the godown. The search was carried out in the presence of the
independent witnesses. However, all those independent witnesses
(panchas) turned hostile.
44. In such circumstances referred to above, we were left with no other
option but to look into the oral evidence of the ATS officials, i.e., the
members of the raiding party:
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"1. Witnesses to prove conspiracy/Meeting in Kenya /
Transfer of Money through Angadiyas
PW-1 Hemang
Sheth (Pg. 31)
(Hostile)
Witness alleged to have visited
Kenya with accused persons namely
Kishore Rathod, Narendra Kumar and
Jaymukhi. He has turned hostile and
has not supported prosecution case
and has disowned his S.161 Cr.P.C.
statement.
PW-4/Yogi Vyas
(Pg. 54)
(Hostile)
As per prosecution he arranged
tickets to and from Kenya online.
Admits booking some ticket generally.
Declared hostile. In prosecution cross
examination, says that he booked
tickets for accused persons to and
from Kenya, however, again denies
the same in cross examination by
accused persons. Does not produce
any ticket(s) as alleged.
PW- 24/
Mahendrakumar
Morkhiya (does
not support
prosecution
case though
not formally
declared
Hostile)
Partner of Angadiya firm (Vijay Vikram
& Co.) - witness to show transfer of
money through hawala. Despite not
having supported prosecution case
on any of the alleged aspect, he has
not been declared hostile. In cross
examination by accused persons,
denies prosecution case.
PW -25 /Babu
Patel (does
not support
prosecution
case though not
formally Hostile)
Other partner of Angadiya firm (Vijay
Vikram & Co.) - witness to show
transfer of money through hawala.
Despite not having supported
prosecution case on any of the
alleged aspect, he has not been
declared hostile. In cross examination
by accused persons, denies
prosecution case.
[2025] 8 S.C.R.
2455
Manoj Tejraj Jain v. State of Gujarat
PW-36/
Nitinkumar
Thakkar
(Hostile)
Person alleged to have visited
Mumbai with accused Bharatsinh
Kathiya and Kishoresinh Rathod.
Does not support prosecution case
and declared hostile. Even in cross
examination by prosecution, denies
prosecution case.
2. Panch Witness of Search and Seizure of controlled
substance/ Ephedrine from the possession of Accused -
Narendra Dhirajlal Kacha from the shed in Ahmedabad
(rented from MD Steel Factory)
PW-14/
Rakeshbhai
Gajjar
PW-15/ Brijen
Mehta
(Hostile)
Denied procedure of Search and
Seizure. Have deposed that police
obtained signatures on 7-8 papers.
Have deposed that they had not
witnessed anything.
3.Witnesses concerning transport of Ephedrine
PW-2/
Rajendrasinh
Parmar (Hostile)
Driver of truck used by accused to
deliver consignment of Ephedrine.
Supported the fact pertaining to
transport in his S. 164 Cr.P.C.
statement. However, he turned hostile
before the court.
4. Witnesses produced by prosecution to prove that the
accused persons had used Identity documents/ SIM
Card of these witnesses.
(a) No phone recovered from Kishoresinh Rathod;
(b) No Nodal Officer examined;
PW-16/ Kirtibhai
Shah
PW-17/Jayesh
Panchal
PW-18/ Dhruvin
Patel
PW-21/Harish
Dhanka
PW- 22/Dinesh
Dhanka
All these witnesses have turned
hostile and have denied informing the
police that their documents/ID Cards
were used/taken by accused to get
SIM card.
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PW -23/
Harshad
Sohiliya
5. Expert Witness
PW-40/ Amrutlal
Hingrajya
Asst. Director FSL Gandhinagar
confirming seized substance as
Ephedrine
6. Police Witness
PW- 29/
Sandeep Modi
PSO at ATS Police Station, received
complaint from (PW 39 (complainant)
and recovered Mudammal
PW-30/
Jayantilal
Ghoghra
PSO at ATS Police Station regarding
procedure
PW-31/
Ranjitsinh
Rathod
PW-32/
Pradipsinh
Vaghela
PW-33/ Amraji
and
PW 34
Police Officials - they proved giving
and receiving samples to the FSL
Gandhinagar
PW-35/
Pravingsinh
Parmar
Driver of Police vehicles used by
raiding team
7. Members of Raiding Team
PW- 38 /
Rashminkumar
Solanki and
PW-39 /Vijay
Kumar Malhotra
This witness proved the raid and
recovery of the controlled substance
from Narendra Kacha
8. Investigating Officers
PW-41/
Manishkumar
Thakkar
The IO proved the procedure under
NDPS Act, the raid and recovery.
However, he does not prove the
conspiracy. Even the CDR's are
statedly not prepared before him.
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Manoj Tejraj Jain v. State of Gujarat
PW-42/MC
Nayak
He came into picture after the
investigation and proves facts from
the point of filing of the charge sheet."
45. It is difficult for us to take the view that the entire recovery suffers
from some basic infirmities and is unbelievable or rather the entire
search could be termed as illegal or contrary to the provisions of
NDPS Act.
46. The search undertaken ultimately resulted in recovery of 55 boxes
of ephedrine powder weighing 1364 Kgs.
47. It could be said on the basis of some evidence on record that Narendra
Kacha was found to be in conscious possession of the contraband.
48. We called upon the learned counsel appearing for Narendra Kacha to
show us as to what explanation his client had offered in his Section
313 statement.
49. Except total denial, there is no explanation worth the name.
50. In such circumstances, it is difficult for us to accept the argument
of the learned counsel that since the independent witnesses, i.e.,
the panchas in whose presence the search was undertaken failed
to support the case of the prosecution and were declared hostile,
the entire recovery should be disbelieved.
51. In such circumstances, referred to above, we can invoke Section 54 of
the NDPS Act so far as the convict - Narendra Kacha is concerned.
52. We now proceed to look into the evidence so far as the other convicts
are concerned, i.e., the other appellants before us.
53. Mr. Nikhil Goel and Mr. Prasannan Namboodiri, the learned counsel
appearing for their respective clients submitted that there is no legal
evidence or any cogent material connecting their clients with the
seizure of ephedrine powder. In such circumstances, both the Courts
below, i.e., the Trial Court and the High Court could be said to have
committed an egregious error in straightway raising the presumption
under Section 35 of the NDPS Act. They would submit that nothing
incriminating was recovered or seized from the possession of their
clients. In such circumstances, the presumption under Section 54
of the NDPS Act would also not come into operation.
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54. In Noor Aga v. State of Punjab reported in (2008) 16 SCC 417, this
Court in the context of NDPS Act stated that the presumption can be
invoked only if the foundational facts are established by prosecution.
55. Paras 58 and 59 respectively of the said Judgment read thus:-
"58. Sections 35 and 54 of the Act, no doubt, raise
presumptions with regard to the culpable mental state on
the part of the accused as also place the burden of proof
in this behalf on the accused; but a bare perusal of the
said provision would clearly show that presumption would
operate in the trial of the accused only in the event the
circumstances contained therein are fully satisfied. An
initial burden exists upon the prosecution and only when
it stands satisfied, would the legal burden shift. Even then,
the standard of proof required for the accused to prove
his innocence is not as high as that of the prosecution.
Whereas the standard of proof required to prove the guilt of
the accused on the prosecution is "beyond all reasonable
doubt" but it is "preponderance of probability" on the
accused. If the prosecution fails to prove the foundational
facts so as to attract the rigours of Section 35 of the Act,
the actus reus which is possession of contraband by the
accused cannot be said to have been established.
59. With a view to bring within its purview the requirements
of Section 54 of the Act, element of possession of the
contraband was essential so as to shift the burden on the
accused. The provisions being exceptions to the general
rule, the generality thereof would continue to be operative,
namely, the element of possession will have to be proved
beyond reasonable doubt."
(emphasis supplied)
56. This Court for the first time in State of Punjab v. Baldev Singh reported
in (1999) 6 SCC 172 sowed the seeds for a test to ascertain as to
when such presumption can be safely attracted which was later more
fully evolved in Noor Aga (supra) wherein a brightline test was laid
down in the form of the 'Rule or Principle of Foundational Facts'.
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Manoj Tejraj Jain v.