Gujarat High Court
State Of Gujarat vs Mahesh Kantibhai Parmar on 22 August, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1201 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
MAHESH KANTIBHAI PARMAR & ANR.
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Appearance:
MS JIRGA JHAVERI, ADDL PUBLIC PROSECUTOR for the Appellant(s) No.
1
MS SUDHA R GANGWAR(329) for the Opponent(s)/Respondent(s) No. 2
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
DESAI
Date : 22/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. The appellant State, being aggrieved by the Page 1 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined judgement and order passed by the learned Sessions Judge, Vadodara on 07.10.1999 in NDPS Case No. 19 of 1998, has preferred the present appeal under Section 378(1)(3) of Cr.P.C whereby the accused - respondents were acquitted of the offences punishable under Sections 20(B)(1)(2), 21, 22, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act').
2. The prosecution has relied on facts narrated in the impugned judgement. In view thereof, the same are not reiterated in this appeal.
3. Heard learned APP Ms. Jirga Jhaveri for the appellant State, who has reiterated the grounds mentioned in the memo of appeal and, has also taken us through the evidence which was rendered before the competent court. She submitted that, the judgement of the competent court being erroneous and not in consonance with the facts and law of the case, the same Page 2 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined should be quashed and set aside, and the appeal be allowed.
4. None appears for the accused - respondents herein.
5. As per the complaint filed by the complainant Shri A. V. Gakhar, he was present in M. O. B. Office at Kothi building on 14/09/1998, for office related work and work related to special squad. At that time, his informer came in person and gave him information that, a person on an LML Vespa scooter having registration no. GJ-6-R-1909 was roaming in search for a bulk buyer in and around the lane of Alkapuri Express Hotel with illegal quantity of brown sugar and charas. He therefore apprised the police personnel to call Panchas.
5.1 As per the complaint, Mr. Gakhar went to J. P. Road Police station at 12:00 o'clock in a government vehicle. A note of the secret information was made in the telephone vardhi book by submitting a report to the Police Inspector Page 3 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined of J. P. Road Police station. After that, as two panchas arrived at the police station, the primary panchnama was drawn at J. P. Road Police station. Personal search of both the panchas was done. The raiding party comprising of Head Const. Chandrakant and Police Const. Ranvirsinh, Driver of government vehicle Bhayala Prabhat as well as government vehicle were also searched and it was made clear that, no objectionable material was found with them, so also, in the government vehicle. Arrangement was done to send a copy of the note made in the telephone vardhi book of J. P. Road police station in sealed cover to the Deputy Commissioner of Police, south zone - for information.
5.2 As per the complaint, the raiding party thereafter left for Juna Padra road from J. P. Road Police station with the panchas. The government vehicle was stopped at Panorama shopping center situated on left side of the road going towards east of under pass of Railway Station from the statue of Ambedkar, and the secret information Page 4 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined was explained to the police personnel of raiding party and panchas. It was also instructed to immediately cordon two persons who would be coming on LML Vespa scooter having registration no. GJ-6-R-1909, and accordingly, everyone arranged their positions around Darpan apartment.
5.3 It is further stated in the complaint that, at 14:30 o'clock, a scooter bearing registration no. GJ 6 R 1909 arrived from Alkapuri petrol pump and on the Darpan Apartment road, at Sahyog Vegetable, the driver of scooter was stopped. On inquiring about his name and address, he stated his name as Kanti Parmar. He was given the introduction of the complainant, police personnel and the panchas. He was told about the fact of secret information. He was also informed about the trap conducted upon him and the vehicle in his possession, regarding the brown sugar and charas. He was asked as to whether he wanted presence of any Gazetted Officer or Magistrate for the search, regarding which, he refused Page 5 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined and had shown his willingness for search (frisking) by the officer present. Same was explained orally and in writing to him and his signature was obtained on another copy in presence of panchas. The key of the scooter was sought from him, and the dickey of the scooter was opened with key in presence of panchas, and on searching, a plastic handbag of grey-white-black color with Titanic mark in English was found. The handbag was taken out and upon looking inside the bag, two green colored plastic bags filled with some substances were found. On opening the plastic bag, a brown colored substance which appeared to be brown sugar was found. There were two plastic bags inside the other green bag having black color, and a thick and soft substance, which on making sure, was found to be charas. Therefore, the said person, namely, Mahesh Kanti Parmar was asked to show the pass or permit for keeping and selling this illegal substance of brown sugar and charas. The said person informed that, he did not have any such permit.
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NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined 5.4 A shop named Govardhan Oil Depot was situated on the ground floor of Darpan Apartment, which was having computerized weighing machine, and therefore, the person present in the shop, namely, Kanu Desai Makwana in the presence of the panchas and the accused, was asked to first weigh brown sugar with plastic bag, which weighed around 314 grams, the value of which was estimated of Rs. 31,40,000=00. Further, on weighing the black thick and soft substance present in other bag, i.e. charas with plastic bag, it was found to be 916 grams and its price was estimated to be Rs. 21,000=00. 20 grams brown sugar and 10 grams of charas were collected in small plastic bags for examination. The bags containing the quantities of Charas and Brown sugar, as well as the bags of samples of Brown sugar and Charas, were sealed and placed in separate cloth bags. The openings of these bags were then stitched with a needle and thread. The empty plastic handbag mentioned above and the two empty plastic bags of green color were placed in a single cloth bag, and the same was also Page 7 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined stitched with a needle and thread. Slips with the signatures of the Panchas were attached to all the cloth bags containing the Brown sugar, Charas, and samples. The bags were then sealed with sealing wax using the official seal of the Police Inspector of J.P. Road Police Station, as detailed in the Panchnama. The quantity of Brown sugar and Charas, along with the samples, were seized for investigation, and the scooter was also seized as per the details in the Panchnama.
5.5 The accused no. 1 was therefore arrested under the NDPS Act. The accused no. 2 was also arrested on the charge of abetting the crime. They were given a written explanation of the reasons for their arrest, and their signatures, along with those of the Panchas, were obtained on a copy before the arrest was made. The complaint was recorded in the station diary. The Panchnama of the Muddamal was drawn and the Muddamal and the scooter were handed over to Police Constable Javsing, who took them into his custody and Page 8 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined recorded the entry of the same in station diary. He also issued a receipt about the same. The Muddamal was then handed over to Police Constable Kanchanbhai for dispatch to F.S.L., Surat. P.S.I. Daudbhai Khristi conducted further investigation and recorded the statements of the relevant witnesses. The accused were taken into further remand, and since there was sufficient evidence against them, a charge-sheet was filed.
6. In the aforesaid set of facts, we have considered the depositions of the complainant i.e. the Raiding Officer PSI Shri Ajay Gakhar, the panchas, the FSL Officer as well as the Investigating Officer and in view thereof, the following emerge:
(a) P.W. 1 - Faruq Abdulsattar, Exh. 12, the panch witness who failed to support the prosecution case had in his examination-in-chief recognized the accused who was present in the courtroom, however, had given him a completely different name.Page 9 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025
NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined
(b) The deposition of P.W. 2 - Irfan Shabbir Ahmed, Exh. 23, also a panch witness, was not found dependable by the competent court.
(c) P.W. 3 - PSI Ajay Gakhar, Exh. 26, the complainant had failed to support the case of the prosecution, as his evidence was fraught with inconsistencies and infirmities.
(d) Similarly, the competent court also found that P.W. 5 - PSO Javsingbhai Valabhai, Exh. 31 who was on duty at J.P Road Police Station, was not reliable and had not supported the case of the prosecution.
(e) The deposition of P.W. 6 - Kanchanbhai Nanjibhai, Exh. 32 is of no significance to the prosecution.
(f) Considering the deposition of P.W. 7 - Bipinbhai Davda, Exh. 34 who was the Scientific Officer at FSL, Surat at the relevant time, there were variations in his Page 10 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined deposition and the FSL report. The competent court found that the prosecution was unable to prove its case beyond reasonable doubt.
(g) The deposition of P.W. 9 - PSI Daudbhai Khristi, Exh. 40 also does not aid the prosecution's case.
7. The competent court had in depth analysed the oral as well as documentary evidence on record and came to the conclusion that, the charges against the accused were not proved beyond reasonable doubt by the prosecution. In light of the same, we deem it fit to reproduce the translated version of paragraphs no. 16 & 17 of the impugned judgement.
"16. In the deposition of PSI Gakhar in the said case it transpires that volume of Brown sugar is assigned Exhibit - A and its sample is assigned Exhibit- A1. The volume of charas is assigned Exhibit - B and its sample is assigned Exhibit- B1. The plastic bag is sealed and given exhibit - B. There is no mention about the Exhibit in its complaint. Therefore the possibility of tampering with Mudamaal cannot be denied. The second Page 11 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined doubt about tampering with Muddamal is that as stated by PSI Gakhar there were five bags. But, as stated by Panchas there were three bags. Gakhar mentions that he did not get the information that a scooter rider would come at Khana Khajana Hotel and Sahyog Hotel. They kept watch in the lane near Hotel Sahyog, but not in other lanes. They had received information that a person was going to arrive in Alkapuri area and at the vicinity of Express Hotel. The watch was arranged for this. From this, it is clear that the alleged tip-off was not specific at all as to from which lane he would arrive. The fact that they set up a watch with Panchas right outside a specific hotel is suspicious. Gakhar was supposed to immediately inform his superior officer about the said tip-off. But, he did not inform his superior officer of the M.O.B, but informed the Deputy Commissioner of Police, South. The time is not mentioned in the said information, and the writing mentions 'J.P. Road Po.Station' vide Exhibit - 27. Thereafter, M.O.B, Vadodara city is written. The fact raises suspicion about the so-called raid, the so-called watch, and the Panchnama that was drawn in the presence of the so-called Panch. The date also differs in the reasons given for the arrest of the accused, which is produced at exhibit -15. It is admitted that the accused was arrested on 14-09-98. However, the date entered in that document is 17-09-98. This indicates that the written documents for the accused were not prepared at that time, but were fabricated later. Therefore, the prosecution's case is surrounded by thick clouds of doubt. PSI Gakhar, is also unaware of the Central Government's N.D.P.S. Circular. He does not even know how many samples to collect in such a case. In such cases, two samples should actually be collected, but they have collected only one. The time of the Page 12 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined accused's arrest is not mentioned in the complaint. They knew the names of the Panchas, yet their names are not written in the complaint. The preliminary Panchnama states that police staff members were present, but their names are not mentioned. There is also a contradiction regarding the seal. The Panchas state that a rubber seal was used. But considering the FSL report vide Exhibit- 35, Police Inspector, J.P.R. Police Stn, such words in English were on seal. He collected the samples approximately for the purpose of measuring the weight whereas atleast weight of Twenty Four Grams is necessary for samples. Gakhar did not write the words that should have been written of the information by the informer. There is contradiction regarding the time of measurement of the Muddamal by the weigher. According to his deposition, they weighed the evidence at 11:30 AM, while Gakhar gives a contradictory deposition regarding that same time. In this case and raid, the M.O.B, P.I. was not present. However, according to Scientific Officer Bipinbhai, the sealed packet he received was labeled as Date: 14-09-98 (1) Farooq, (2) sd/- illegible before me, illegible, Police Inspector, Special Squad, M.O.B, Vadodara.
Therefore, how his presence is marked is doubtful. In the said raid, regarding the fact as to the government vehicle used was of which number, the extract of its logbook entry has not been produced. Thus, considering all these facts, the prosecution's case is not proven beyond a reasonable doubt.
17. In this case, pursuant Section 42, the government's case is based on a tip from an informer. They received prior information about the incident. Even though the tip-off was given to P.S.I. Gakhar at their M.O.B. branch, which is located in the Kothi building, he did not inform his Page 13 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined Senior Officer regarding the information. He should have recorded the information he received with the exact words of the tip and should have informed his superior officer, which was not done in this case. Section 42(1) is a mandatory provision. This mandatory provision has not been complied with at all. Based on the judgment of the Supreme Court in the matter of Sections 42(a) and 42(d 2) of the NDPS Act, since both mandatory provisions have been violated by the prosecution, they cannot be given the benefit of it. Every police station maintains an Inward and Outward register, yet P.S.I. Gakhar assigned his own previous confidential no. A.V.G 100/1998 and informed about the tip-off to Deputy Police Commissioner, South Zone in which the time was not written. No answer or endorsement was taken in the south Zone as to when was the said letter received, who received it and is the original letter has been received over there or not. In fact, 20 grams should be collected for sample but instead less quantity was collected. Which creates doubt regarding the Muddamal."
7.1 Apropos the above findings by the competent court, for the sake of convenience, we reproduce Section 42(1) and (2) of the NDPS Act.
"42. Power of entry, search, seizure and arrest without warrant or authorisation.--
(1)Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, Page 14 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,--
(a)enter into and search any such building, conveyance or place;
(b)in case of resistance, break open any door and remove any obstacle to such entry;
(c)seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or Page 15 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined freezing or forfeiture under Chapter VA of this Act; and
(d)detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2)Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."
7.2 Thus, Section 42 of the NDPS Act provides that, if the officer has reason to believe from personal knowledge or information given by any person, he should take down Page 16 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which, an offence punishable under this Act has been committed, and also inform his immediate superior officer. From the records, it is borne out that, the complainant did not inform his Senior Officer regarding the information. He did not even record the information he received with the exact words of the tip. Thus, the foundation of the impugned complaint itself is in violation of Section 42 of the NDPS Act.
8. At this juncture, we are also aided by the judgement of the Apex Court in the case of Najmunisha Sole Vs. State of Gujarat with Abdul Hamid Chandmiya alias Ladoo Bapu Sole vs. Narcotics Control Bureau [AIR 2024 SC 2778], wherein, the Apex Court has specifically dealt with the requirement of Section 42 of the NDPS Act. After observing non-compliance of Section 42 of the NDPS Act and other mandatory provisions, the Apex Court set aside the judgement of the High Court as well Page 17 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined as the trial court and acquitted the appellants therein by giving them benefit of doubt. Relevant paragraphs of the said decision read thus:
"31. From the perusal of provision of Section 42(1) of the NDPS Act 1985, it is evident that the provision obligates an officer empowered by virtue of Section 41(2) of the NDPS Act 1985 to record the information received from any person regarding an alleged offence under Chapter IV of the NDPS Act 1985 or record the grounds of his belief as per the Proviso to Section 42(1) of the NDPS Act 1985 in case an empowered officer proceeds on his personal knowledge. While the same is to be conveyed to the immediate official superior prior to the said search or raid, in case of any inability to do so, the Section 42(2) of the NDPS Act provides that a copy of the same shall be sent to the concerned immediate official superior along with grounds of his belief as per the proviso hereto. This relaxation contemplated by virtue of Section 42(2) of the NDPS Act 1985 was brought about through the Amendment Act of 2001 to the NDPS Act of 1985 wherein prior to this position, the Section 42(2) mandated the copy of the said writing to be sent to the immediate official superior "forthwith".
32. The decision in Karnail Singh (supra) has been extensively referred by the learned Counsel for the Appellants and at the cost of repetition, it is observed that absolute non-compliance of the statutory requirements under the Section 42(1) and Page 18 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined (2) of the NDPS Act 1985 is verboten. However, any delay in the said compliance may be allowed considering the same is supported by well- reasoned explanations for such delay. This position adopted by the instant 5-Judges Bench of this Court is derived from the ratio in the decision in Balbir Singh (supra) which is a decision by a 3-Judges Bench of this Court.
33. Another 3-Judges Bench while dealing with compliance of Section 42 of the NDPS Act 1985 in Chhunna alias Mehtab v. State of Madhya Pradesh (2002) 9 SCC 363 dealt with criminal trial wherein there was an explicit noncompliance of the statutory requirements under the NDPS Act 1985. It was held that the trial of the Petitioner- Appellant therein stood vitiated.
For a better reference, the judgment is quoted below as:
"1. The case of the prosecution was that at 3.00 a.m. a police party saw opium being prepared inside a room and they entered the premises and apprehended the accused who was stated to be making opium and mixing it with chocolate.
2. It is not in dispute that the entry in search of the premises in question took place between sunset and sunrise at 3.00 a.m. This being the position, the proviso to Section 42 of the Narcotic Drugs and Psychotropic Substances Act was applicable and it is admitted that before the entry for effecting search of the building neither any search warrant or authorisation was obtained nor were the grounds for possible plea that if opportunity for obtaining search warrant or Page 19 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined authorisation is accorded the evidence will escape indicated. In other words, there has been a non-compliance with the provisions of the proviso to Section 42 and therefore, the trial stood vitiated.
3. The appeals are, accordingly, allowed. "
34. In Dharamveer Parsad v. State of Bihar (2020) 12 SCC 492 , there was non-examination of the independent witness without any explanation provided by the prosecution and even the panchnama or the seizure memo were not prepared on the spot but after having had reached police station only. Since the vehicle was apprehended and contraband was seized in non-compliance of the Section 42 of the NDPS Act 1985 - conviction and sentence of the appellant therein was set aside. Apart from the said reasons there were various suspicious circumstances that inspired the confidence of the Court to set aside the conviction affirmed by the High Court therein. Paragraph numbers 05 and 06 are reiterated below for reference:
"5. In the present case PW 1, who is the investigating officer, in his deposition has stated that the information i.e. the contraband was being carried from the Indo-Nepal border identified in a vehicle, details of which had also been provided, had been received in the evening of 2-72007. PW 1 has further stated that on receipt of this information, he had formed a team and had moved to Raxaul from Patna, which place they had reached by 2.00 a.m. in the morning of 3-7-2007. The vehicle in question had been apprehended and the contraband seized at about 6.00 a.m. of 3-7- Page 20 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined 2007. No explanation has been offered why the statement had not been recorded at any anterior point of time and the same was so done after the seizure was made.
6. Even if we were to assume that the anxiety of the investigating officer was to reach Raxaul which is on the international border and therefore, he did not have the time to record said information as per requirement of Section 42 of the Act, the matter does not rest there. There are other suspicious circumstances affecting the credibility of the prosecution case. Though, the investigating officer has stated that he had moved to Raxaul along with a team and two independent witnesses, the said independent witnesses were not examined. No explanation is forthcoming on this count also. That apart from the materials on record it appears that no memos including the seizure memo were prepared at the spot and all the papers were prepared on reaching the police station at Patna on 4-7-2007."
9. Thus, we are in complete agreement with the reasonings arrived at by the competent court. At this stage, it would also be appropriate to refer to the observations of the Apex Court regarding the scope of interference in acquittal appeals in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415, wherein, the Apex Court has Page 21 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined observed as under:
"Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313, this Court stated:
"While deciding an appeal it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court".
From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
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NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 9.1 In the case of Sanjeev v. State of Himachal Pradesh reported in 2022 (6) SCC 294, the Hon'ble Apex Court has held as under:
"7. It is well settled that:-
7.1 While dealing with an appeal against acquittal, the reasons which had weighed with the Trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the Trial Court deserves Page 23 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined to be upturned (See Vijay Mohan Singh v. State of Karnataka3, Anwar Ali and another v. State of Himachal Pradesh).
7.2 With an order of acquittal by the Trial Court, the normal presumption of innocence in a criminal matter gets reinforced (See Atley v. State of Uttar Pradesh).
7.3 If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (See Sambasivan and others v. State of Kerala)."
9.2 Similarly, in the case of Bhupatbhai Bachubhai Chavda and another reported in [2024] 4 S.C.R. 322, the Hon'ble Apex Court has held as under:
"6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored Page 24 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the 326 [2024] 4 S.C.R. Digital Supreme Court Reports accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.
7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court's finding on the burden of proof is completely erroneous. It is contrary to the law of the land.
...
11. Therefore, the appeal must succeed. We set aside the judgment and order dated 14th December 2018 of the High Court and set aside the conviction of the appellants. The judgment and order dated 5th July 1997 of the Trial Court is restored. The appeal is, accordingly, allowed. The bail bonds of the appellant no.2 are cancelled. The appellant no.1 shall be forthwith set at liberty unless he is required to be detained in connection with any other case."Page 25 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025
NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined 9.3 Thus, in case the appellate court agrees with the reasons and the opinion given by the competent court below, then the discussion of evidence at length is not necessary. In light of the above settled principle of law laid down for acquittal appeals, we have briefly re- ppreciated the evidence led by the prosecution in the present Case.
10. It is also a settled legal position that in acquittal appeals, the appellate court is not required to re-write the judgement or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Hon'ble Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
"... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the Page 26 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined reasons given by the Court the decision of which is under appeal, will ordinarily suffice."
10.1 Thus, in case the appellate court agrees with the reasons and the opinion given by the competent court below, then the discussion of evidence at length is not necessary.
11. The court below had in depth, analysed the oral as well as documentary evidence on record, and had come to the conclusion that, the charges against the accused were not proved beyond reasonable doubt by the prosecution. Upon overall appreciation of the evidence adduced by the prosecution and defence as well as the impugned judgement, harmoniously with the findings recorded by us, we do not deem it fit to interfere with the reasonings assigned by the competent court. The impugned judgment and order passed in NDPS Case No. 19 of 1998 whereby the respondent - accused came to be acquitted, is hereby confirmed.
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NEUTRAL CITATION R/CR.A/1201/1999 JUDGMENT DATED: 22/08/2025 undefined
12. Accordingly, the present appeal is dismissed. R & P, if any called for, to be sent back to the concerned Trial Court forthwith. Bail bonds, if any, shall stand forfeited.
(VAIBHAVI D. NANAVATI,J) (UTKARSH THAKORBHAI DESAI, J) DIVYA Page 28 of 28 Uploaded by DIVYA PILLAI(HC00199) on Thu Sep 11 2025 Downloaded on : Sat Sep 13 00:05:12 IST 2025