Supreme Court of India
MANOJ TEJRAJ JAINversusSTATE OF GUJARAT
- Citation
- 2025 INSC 1090
- Decided
- 28 August 2025
- Disposal
- Disposed off
Holding
Statutory presumptions under Sections 35 and 54 of the NDPS Act cannot be invoked without proof of foundational facts, and a confessional statement not recorded under Section 67 cannot form the basis of conviction.
Summary
The case arose from a raid on a godown in Ahmedabad where 55 boxes containing 1,364 kg of ephedrine, a controlled substance under the NDPS (Regulation of Controlled Substances) Order 2013, were seized. Four appellants were convicted under Sections 25A and 29 of the NDPS Act based largely on the confessional statement of one co‑accused, Narendra Kacha, and on the recovery of the contraband. The Supreme Court examined whether the prosecution had established the foundational facts required to invoke the statutory presumptions under Sections 35 and 54, and whether a confession not recorded under Section 67 could be used to sustain conviction. It held that the presumption under Section 35 could not be raised where foundational facts of possession were not proved beyond reasonable doubt for the co‑accused, and that a confession alone without corroborating legal evidence is inadmissible. Consequently, the Court affirmed the conviction and reduced the sentence of Narendra Kacha to the period already served, while acquitting the other three appellants of all charges. The appeals were disposed of with partial relief.
Issues considered
- The prosecution must establish foundational facts of possession before statutory presumptions under Sections 35 and 54 of the NDPS Act can be invoked.
- Whether a confessional statement not recorded under Section 67 of the NDPS Act can be used as substantive evidence to convict co‑accused.
- Whether the evidence on record suffices to prove abetment and criminal conspiracy under Section 29 of the NDPS Act.
Legislation cited
Headnote
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† 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
Subjects
RaidGodown raidedEphedrine powderRecovery of ephedrine powderControlled substanceFoundational factsSections 25A, 29, NDPS ActPresumption under section 35Presumption of culpable mental statePresumption from possession of illicit articlesConscious possession of contrabandSearch & seizureBeyond reasonable doubtConfessional statementStatutory presumption
Judgment
[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 appellants-
co-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 Name Particulars/Designation of EXH
no. Position the PW No.
PW Hemang Witness examined to prove 19
1 Dineshbhai that he went to Kenya
Sheth with co-accused persons
including Kishorsinh
Rathod and Jay Mukhi
PW Rajendrasinh Driver of truck used to 20
2 Pravinsinh deliver consignment of
Parmar Ephedrine
PW Ajitsinh Owner of truck used 21
3 Ranchodbhai by accused to deliver
Kathiya consignment of Ephedrine
PW Yogi Travel Agent who allegedly 26
4 Bhadreshbhai booked tickets to Kenya
Vyas
2444 [2025] 8 S.C.R.
Supreme Court Reports
PW Firozbhai Driver of Truck hired by 27
5 Mommadbhai ATS which picked up
Mansuri Ephedrine from shed in
Ahmedabad
PW Pareshbhai Employee of Accused 29
6 Sureshbhai Narendrabhai Dhirajal
Patel Kacha (or Narendra Kacha
in short) working in shed
rented from MD Steel
Factory
PW Jayeshbhai Owner of MD Steel which 30
7 Maganbhai let out its shed to accused
Patel Narendra Kacha
PW Dineshbhai Employee of MD Steel 36
8 Somabhai
Prajapati
PW Bhagabhai Employee of MD Steel 37
9 Fuiabhai
Solanki
PW Mukeshbhai Person who introduced 38
10 Nanubhai Patel accused Narendra Kacha
to the owner of the Shed
(PW 7)
PW Baseshwar Production Manager 40
11 Shantiling of Avon Life Sciences
Khandal Ltd (in Short “Avon”),
Solapur Maharashtra
[where Ephedrine was
manufactured]
PW Umeshbhai HR Manager (Avon) 41
12 Prataprao
Bhosle
PW Prabhakar Store Assistant (Avon) 42
13 Gundopant
Hajare
PW Rakeshbhai Panch witness of Search 45
14 Gordhanbhai and Seizure of Ephedrine
Gajjar
[2025] 8 S.C.R. 2445
Manoj Tejraj Jain v. State of Gujarat
PW Brijen Panch witness of Search 47
15 Dilipkumar and Seizure of Ephedrine
Mehta
PW Kirtibhai Owner of SIM card alleged 49
16 Arvindbhai Shah to be used by accused
persons during conspiracy
PW Jayesh Owner of SIM card alleged 50
17 Bakabhai to be used by accused
Panchal persons during conspiracy
PW Dhruvin Owner of SIM card alleged 51
18 Ashokbhai Patel to be used by accused
persons during conspiracy
PW Ajit Annu One of the Directors of 52
19 Kaamat Avon
PW Rajendra One of the Directors of 53
20 Padbhanabhan Avon
Kemal
PW Harishbhai Owner of SIM card alleged 54
21 Chhajuram to be used by accused
Dhanka person during conspiracy
PW Dinesh Owner of SIM card alleged 55
22 Harishbhai to be used by accused
Dhanka person during conspiracy
PW Harshadbhai Owner of SIM card alleged 56
23 Flaribhai to be used by accused
Sohiliya person during conspiracy
PW Mahendrakumar Partner of Angadiya firm 58
24 Manilal (vijay Vikram & Co.)
Morakhiya
PW Babubhai Partner of Angadiya firm 59
25 Shankarlal Patel (vijay Vikram & Co.)
PW Jaysinh Panch-witness of Truck 60
26 Dipaksinh GJ12AT 8544 used to
Chauhan transport Ephedrine by
Accused Narendra Kacha
PW Magendra Security Person at Avon’s 61
27 Baliram premises
Aagvane
2446 [2025] 8 S.C.R.
Supreme Court Reports
PW Baweshwar Security Person at Avon’s 62
28 Ghyanoba premises
Venapure
PW Sandeep PSO at ATS Police Station, 63
29 Sureshbhai received complaint from
Modi (PW 39 (informant) and
recovered Mudammal
PW Jayantiiai PSO at ATS Police Station 65
30 Babuial
Dhodhara
PW Ranjitsinh Police constable – 69
31 Shivubha received samples and FSL
Rathod Report
PW Pradipsinh Gave samples to FSL 70
32 Dilipsinh
Vaghela
PW Amraji Crime writer – received 71
33 Harchandji samples and kept in locker
PW Mohmmad Sajid Crime writer and recovered 72
34 Abdul Khalid Mudammal
Sumra
PW Pravinsinh Driver of Police vehicle 73
35 Ghanshyamsinh used by raiding team
Parmar
PW Nitinkumar Person known to 75
36 Chandulal accused Bharatsinh and
Thakkar Kishoresinh and alleged to
have visited Mumbai with
them
PW Kishor Owner of Hotel Sunshine 76
37 Kameshwar Jha at Mumbai
PW Rashminkumar Police Inspector, First 77
38 Khemchandbhai Informant & Member of
Solanki Raiding Team
PW Vijaykumar Police Inspector, First 79
39 Rameshbhai Informant & Member of
Malhotra Raiding Team
[2025] 8 S.C.R. 2447
Manoj Tejraj Jain v. State of Gujarat
PW Amrutlal Asst. Director, FSL 96
40 Vashrambhai Gandhinagar
Hingrajiya
PW Manishkumar Investigating Officer 111
41 Hasmukhrai
Thakar
PW Maheshbhai Asst. Investigating Officer 137”
42 Chaturbhai
Nayak
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. 2449
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.5179-
5181/2024 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.”
2450 [2025] 8 S.C.R.
Supreme Court Reports
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.”
[2025] 8 S.C.R. 2451
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:
2452 [2025] 8 S.C.R.
Supreme Court Reports
“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
[2025] 8 S.C.R. 2453
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:
2454 [2025] 8 S.C.R.
Supreme Court Reports
“1. Witnesses to prove conspiracy/Meeting in Kenya /
Transfer of Money through Angadiyas
PW-1 Hemang Witness alleged to have visited
Sheth (Pg. 31) Kenya with accused persons namely
(Hostile) 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 As per prosecution he arranged
(Pg. 54) tickets to and from Kenya online.
(Hostile) 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/ Partner of Angadiya firm (Vijay Vikram
Mahendrakumar & Co.) - witness to show transfer of
Morkhiya (does money through hawala. Despite not
not support having supported prosecution case
prosecution on any of the alleged aspect, he has
case though not been declared hostile. In cross
not formally examination by accused persons,
declared denies prosecution case.
Hostile)
PW -25 /Babu Other partner of Angadiya firm (Vijay
Patel (does Vikram & Co.) - witness to show
not support transfer of money through hawala.
prosecution Despite not having supported
case though not prosecution case on any of the
formally Hostile) 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/ Person alleged to have visited
Nitinkumar Mumbai with accused Bharatsinh
Thakkar Kathiya and Kishoresinh Rathod.
(Hostile) 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/ Denied procedure of Search and
Rakeshbhai Seizure. Have deposed that police
Gajjar obtained signatures on 7-8 papers.
PW-15/ Brijen Have deposed that they had not
Mehta witnessed anything.
(Hostile)
3.Witnesses concerning transport of Ephedrine
PW-2/ Driver of truck used by accused to
Rajendrasinh deliver consignment of Ephedrine.
Parmar (Hostile)
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 All these witnesses have turned
Shah hostile and have denied informing the
PW-17/Jayesh police that their documents/ID Cards
Panchal were used/taken by accused to get
PW-18/ Dhruvin SIM card.
Patel
PW-21/Harish
Dhanka
PW- 22/Dinesh
Dhanka
2456 [2025] 8 S.C.R.
Supreme Court Reports
PW -23/
Harshad
Sohiliya
5. Expert Witness
PW-40/ Amrutlal Asst. Director FSL Gandhinagar
Hingrajya confirming seized substance as
Ephedrine
6. Police Witness
PW- 29/ PSO at ATS Police Station, received
Sandeep Modi complaint from (PW 39 (complainant)
and recovered Mudammal
PW-30/ PSO at ATS Police Station regarding
Jayantilal procedure
Ghoghra
PW-31/ Police Officials – they proved giving
Ranjitsinh and receiving samples to the FSL
Rathod Gandhinagar
PW-32/
Pradipsinh
Vaghela
PW-33/ Amraji
and
PW 34
PW-35/ Driver of Police vehicles used by
Pravingsinh raiding team
Parmar
7. Members of Raiding Team
PW- 38 / This witness proved the raid and
Rashminkumar recovery of the controlled substance
Solanki and from Narendra Kacha
PW-39 /Vijay
Kumar Malhotra
8. Investigating Officers
PW-41/ The IO proved the procedure under
Manishkumar NDPS Act, the raid and recovery.
Thakkar However, he does not prove the
conspiracy. Even the CDR’s are
statedly not prepared before him.
[2025] 8 S.C.R. 2457
Manoj Tejraj Jain v. State of Gujarat
PW-42/MC He came into picture after the
Nayak 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.
2458 [2025] 8 S.C.R.
Supreme Court Reports
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’.
[2025] 8 S.C.R. 2459
Manoj Tejraj Jain v. State of Gujarat
57. This ‘Rule or Principle of Foundational Facts’ simpliciter lays down
that 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. The rationale behind
the same is two-fold. First, in the absence of any actus reus there
is no possible way to ascertain the corresponding mens rea that is
required to be established. This is because it is the actus reus which
demarcates or delineates the mens rea which is to be looked for
and established. Without an actus reus of any form there arises no
question of establishing and consequently presuming the mens rea,
in view of the fundamental principle of criminal jurisprudence, that no
one should be punished for their thoughts or intention alone unless
accompanied by some form of act. Secondly, and more importantly
it ensures that the statutory presumption does not overreach or
take the place of proof of guilt under the guise of ‘presumption of
culpable mental state’.
58. It would be too much to shift the entire onus onto the accused
and to then ask him to prove a negative fact. Thus, any statutory
presumption would operate only after the prosecution first lays the
foundational facts necessary for the offences that have been alleged
beyond a reasonable doubt. This is because a negative cannot be
proved in the initial threshold, in order to prove a contrary fact, the
fact whose opposite is sought to be established must be proposed
first. Thus, in law it is trite that the initial burden always lies on the
prosecution. This is why, the establishment of foundational facts
by the prosecution is a prerequisite for triggering the statutory
presumption for shifting the onus on the accused to prove the
contrary. It is a delicate balance struck between the practical need
for such presumption in law and the cardinal principles of criminal
jurisprudence to ensure that the presumption does not cross or
transgress the fine line that demarcates presumption of ‘culpable
mental state’ from the ‘presumption of guilt’ itself.
2460 [2025] 8 S.C.R.
Supreme Court Reports
59. Since a negative cannot be proved, an accused cannot be asked
to disprove his guilt even before the foundational allegations with
supporting material thereof are placed and duly established by the
prosecution before the court. 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 under
Section 35 of the NDPS Act will not come into play.
60. Even if the prosecution establishes such foundational facts and the
presumption is raised against the accused, he can rebut the same
either by discrediting prosecution’s case as improbable or absurd or
the accused could lead evidence to prove his defence, in order to
rebut the presumption, however the said presumption under Section
35 of the NDPS Act will be said to have been rebutted only where
the accused by way of his defence establishes a fact contrary to
the presumption and proves the same beyond a reasonable doubt.
61. It is equally well-settled that the mere alleged confessional statement
of co-accused, namely, Narender Kacha at the time of his arrest can
also not be made the basis of conviction.
62. In the case in hand, the Courts below have relied upon Section 30
of the Indian Evidence Act.
63. The learned counsel appearing for the ATS would submit that it is the
confessional statement of Narendra Kacha that led the officials reach
upto the other accused persons and unearth the larger conspiracy. He
would submit that the statement made by Narendra Kacha has been
rightly relied upon by the courts below for the purpose of inferring
the conspiracy hatched by the accused persons.
64. The record reveals that the statement of Narendra Kacha sought to
be relied upon is not one recorded under the provisions of Section
67 of the NDPS Act. It appears that when the raid was carried
out at the godown and Narendra Kacha was apprehended, at that
point of time they recorded the statement of Narendra Kacha. This
statement said to have been made by Narendra Kacha has no
evidentiary value.
65. Even otherwise, the Court should not start with the confession of an
accused. The Court should first marshal the facts on record and look
[2025] 8 S.C.R. 2461
Manoj Tejraj Jain v. State of Gujarat
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.
66. In Kashmira Singh v. State of M.P. reported in (1952) 1 SCC 275,
this Court observed as under:
“The confession of an accused person is not evidence in
the ordinary sense of the term as defined in Section 3. It
cannot be made the foundation of a conviction and can
only be used in support of other evidence. The proper
way is, first, to marshal the evidence against the accused
excluding the confession altogether from consideration and
see whether, if it is believed a conviction could safely be
based on it. If it is capable of belief independently of the
confession, then of course it is not necessary to call the
confession in aid. But cases may arise where the Judge
is not prepared to act on the other evidence as it stands
even though, if believed, it would be sufficient to sustain
a conviction. In such an event the Judge may call in aid
the confession and use it to lend assurance to the other
evidence and thus fortify himself in believing what without
the aid of the confession he would not be prepared to
accept.”
(emphasis supplied)
67. In Chandrakant Chimanlal Desai v. State of Gujarat reported in
(1992) 1 SCC 473 while referring to and relying upon Kashmira
Singh (supra) this Court observed as under:
“The High Court has on the other hand made this
confessional statement as the basis and has then gone in
search for corroboration. It concluded that the confessional
statement is corroborated in material particulars by
prosecution witnesses without first considering and
marshalling the evidence against the accused excluding
the confession altogether from consideration. As held in the
decision cited above only if on such consideration on the
evidence available, other than the confession a conviction
2462 [2025] 8 S.C.R.
Supreme Court Reports
can safely be based then only the confession could be
used to support that belief or conclusion. …”
(emphasis supplied)
68. In Haricharan Kurmi v. State of Bihar reported in (AIR) 1964 SC
1184, this Court has stated that confession of an accused can be
looked into only if there is some other legal evidence prima facie
connecting the accused with the crime.
69. Some of the broad principles governing the law of conspiracy has been
explained and summarised by this Court in State of Tamil Nadu v.
Nalini reported in (1999) 5 SCC 253. This Court while summarizing
the broad principles stated that the summary cannot be exhaustive
of the principles.
“1. Under Section 120-A IPC offence of criminal conspiracy
is committed when two or more persons agree to do or
cause to be done an illegal act or legal act by illegal
means. When it is a legal act by illegal means overt act is
necessary. Offence of criminal conspiracy is an exception
to the general law where intent alone does not constitute
crime. It is intention to commit crime and joining hands
with persons having the same intention. Not only the
intention but there has to be agreement to carry out the
object of the intention, which is an offence. The question
for consideration in a case is did all the accused have the
intention and did they agree that the crime be committed.
It would not be enough for the offence of conspiracy when
some of the accused merely entertained a wish, howsoever
horrendous it may be, that offence be committed.
2. Acts subsequent to the achieving of the object of
conspiracy may tend to prove that a particular accused
was party to the conspiracy. Once the object of conspiracy
has been achieved, any subsequent act, which may
be unlawful, would not make the accused a part of the
conspiracy like giving shelter to an absconder.
3. Conspiracy is hatched in private or in secrecy. It is rarely
possible to establish a conspiracy by direct evidence.
[2025] 8 S.C.R. 2463
Manoj Tejraj Jain v. State of Gujarat
Usually, both the existence of the conspiracy and its
objects have to be inferred from the circumstances and
the conduct of the accused.
4. Conspirators may for example, be enrolled in a chain –
A enrolling B, B enrolling C, and so on; and all will be
members of a single conspiracy if they so intend and agree,
even though each member knows only the person who
enrolled him and the person whom he enrols. There may
be a kind of umbrella-spoke enrolment, where a single
person at the centre does the enrolling and all the other
members are unknown to each other, though they know
that there are to be other members. These are theories
and in practice it may be difficult to tell which conspiracy in
a particular case falls into which category. It may however,
even overlap. But then there has to be present mutual
interest. Persons may be members of single conspiracy
even though each is ignorant of the identity of many others
who may have diverse roles to play. It is not a part of the
crime of conspiracy that all the conspirators need to agree
to play the same or an active role.
5. When two or more persons agree to commit a crime of
conspiracy, then regardless of making or considering any
plans for its commission, and despite the fact that no step
is taken by any such person to carry out their common
purpose, a crime is committed by each and every one
who joins in the agreement. There has thus to be two
conspirators and there may be more than that. To prove
the charge of conspiracy it is not necessary that intended
crime was committed or not. If committed it may further
help prosecution to prove the charge of conspiracy.
6. It is not necessary that all conspirators should agree to
the common purpose at the same time. They may join with
other conspirators at any time before the consummation
of the intended objective, and all are equally responsible.
What part each conspirator is to play may not be known
to everyone or the fact as to when a conspirator joined
the conspiracy and when he left.
2464 [2025] 8 S.C.R.
Supreme Court Reports
7. A charge of conspiracy may prejudice the accused
because it forces them into a joint trial and the court
may consider the entire mass of evidence against every
accused. Prosecution has to produce evidence not only
to show that each of the accused has knowledge of the
object of conspiracy but also of the agreement. In the
charge of conspiracy the court has to guard itself against
the danger of unfairness to the accused. Introduction
of evidence against some may result in the conviction
of all, which is to be avoided. By means of evidence in
conspiracy, which is otherwise inadmissible in the trial of
any other substantive offence prosecution tries to implicate
the accused not only in the conspiracy itself but also in
the substantive crime of the alleged conspirators. There is
always difficulty in tracing the precise contribution of each
member of the conspiracy but then there has to be cogent
and convincing evidence against each one of the accused
charged with the offence of conspiracy. As observed by
Judge Learned Hand “this distinction is important today
when many prosecutors seek to sweep within the dragnet
of conspiracy all those who have been associated in any
degree whatever with the main offenders”.
8. As stated above it is the unlawful agreement and not
its accomplishment, which is the gist or essence of the
crime of conspiracy. Offence of criminal conspiracy is
complete even though there is no agreement as to the
means by which the purpose is to be accomplished. It is
the unlawful agreement which is the gravamen of the crime
of conspiracy. The unlawful agreement which amounts to
a conspiracy need not be formal or express, but may be
inherent in and inferred from the circumstances, especially
declarations, acts and conduct of the conspirators. The
agreement need not be entered into by all the parties to
it at the same time, but may be reached by successive
actions evidencing their joining of the conspiracy.
9. It has been said that a criminal conspiracy is a
partnership in crime, and that there is in each conspiracy
a joint or mutual agency for the prosecution of a common
[2025] 8 S.C.R. 2465
Manoj Tejraj Jain v. State of Gujarat
plan. Thus, if two or more persons enter into a conspiracy,
any act done by any of them pursuant to the agreement is,
in contemplation of law, the act of each of them and they
are jointly responsible therefor. This means that everything
said, written or done by any of the conspirators in execution
or furtherance of the common purpose is deemed to have
been said, done or written by each of them. And this joint
responsibility extends not only to what is done by any of
the conspirators pursuant to the original agreement but
also to collateral acts incidental to and growing out of the
original purpose. A conspirator is not responsible, however,
for acts done by a co-conspirator after termination of the
conspiracy. The joinder of a conspiracy by a new member
does not create a new conspiracy nor does it change the
status of the other conspirators, and the mere fact that
conspirators individually or in groups perform different
tasks to a common end does not split up a conspiracy
into several different conspiracies.
10. A man may join a conspiracy by word or by deed.
However, criminal responsibility for a conspiracy requires
more than a merely passive attitude towards an existing
conspiracy. One who commits an overt act with knowledge
of the conspiracy is guilty. And one who tacitly consents
to the object of a conspiracy and goes along with other
conspirators, actually standing by while the others put the
conspiracy into effect, is guilty though he intends to take
no active part in the crime.”
(emphasis supplied)
70. In the overall view of the matter, we have reached the conclusion
that the High Court committed no error in affirming the Judgment
and Order of conviction passed by the Trial Court so far as Narendra
Kacha is concerned.
71. While affirming the Judgment and Order of conviction, we reduce
the sentence so far as Narendra Kacha is concerned to the period
already undergone. In the result, the Criminal Appeal Nos.1492-
1493/2025 respectively stand partly allowed.
2466 [2025] 8 S.C.R.
Supreme Court Reports
72. We are informed that the Trial Court imposed sentence of 10 years
of rigorous imprisonment. Out of 10 years, the convict Narendra
Kacha has already undergone 8 years and 10 months. He is on
bail. His bail bonds now stand discharged.
73. So far as the other connected Criminal Appeals are concerned, they
stand allowed. The appellants are acquitted of all the charges framed
against them. Their bail bonds also stand discharged.
74. Pending applications, if any, also stand disposed of.
Result of the case: Appeals disposed of.
†
Headnotes prepared by: Divya Pandey
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