Manoj Tejraj Jain vs State of Gujarat

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’:

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]

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]