Holding

The appeal is dismissed; the trial court’s acquittal of the accused is affirmed.

Summary

The State of Gujarat appealed the acquittal of four accused who were alleged to have possessed 2.6 kg of ganja seized from a bus on 30 Oct 2005. The trial Special Judge acquitted them, finding that the prosecution failed to prove the offence beyond reasonable doubt and had not complied with mandatory provisions of the NDPS Act, including Sections 42, 50, 55 and 57, and that the seized substance was not conclusively identified as ganja. The State argued that the evidence, including police testimony and documentary material, proved the charge and that the trial court erred in its appreciation. The High Court examined the procedural lapses, the lack of proper weighing records, and the uncertainty about the nature of the seized drug, and held that the trial court’s findings were correct. Consequently, the appeal was dismissed and the acquittal confirmed.

Issues considered

Whether the trial court erred in acquitting the accused despite the prosecution’s evidence.
Whether the prosecution proved the charge under Sections 8(c), 20(B) and 29 of the NDPS Act beyond reasonable doubt.
Whether non‑compliance with mandatory provisions of the NDPS Act (Sections 42, 50, 55, 57) vitiates the trial court’s judgment.
Whether the seized substance was legally defined as ‘ganja’ under Section 2(iii)(b) of the NDPS Act.

Legislation cited

Code of Criminal Procedure, 1973s. 100, s. 165, s. 313, s. 378(1)(3)
Narcotic Drugs and Psychotropic Substances Act, 1985s. 20(B), s. 29, s. 2(iii)(b), s. 42(1), s. 42(2), s. 50, s. 55, s. 57, s. 8(c)

Subjects

NDPS Actappeal against acquittalprocedural complianceSection 50Section 42drug seizureburden of proofpresumption of innocence

Judgment

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 122 of 2009

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

==========================================

Approved for Reporting Yes No
√
==========================================
STATE OF GUJARAT
Versus
PRABHUBHAI PUJABHAI NAT & ORS.
==========================================
Appearance:
MS JYOTI BHATT APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s)
No. 2,3,4
RULE UNSERVED for the Opponent(s)/Respondent(s) No. 2,3,4
==========================================

CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

Date : 19/08/2026

ORAL JUDGMENT

1. The appellant - State of Gujarat has preferred this appeal under
Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the
judgment and order dated 08.10.2008 passed by the learned Special
Judge (N.D.P.S.) Himmatnagar, Camp at Idar (hereinafter be referred
to as “the Special Judge”) in Special (NDPS) Case No. 1 of 2006,
whereby the trial Court has acquitted the original accused

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(respondents herein) from the offences punishable under Sections
8(c), 20(B) and 29 etc of the Narcotic Drugs and Psychotropic
Substances Act, 1985 [hereinafter be referred to as “the Act”].

2. The facts of the present case are that on 30.10.2005, one
Virchandbhai Kanjibhai was carrying out checking in luxury bus
coming from Rajasthan bearing registration No. RJ 14-1-P-5758 from
which one passenger tried to hide his bag and on scrutiny of the bag,
contraband article i.e. Ganja weighed about 2 kilo 600 gram for the
purpose of selling without any pass or permit, came to be seized and
other accused made support in carrying the said article and therefore
they have committed an offence punishable under Sections 8(c),
20(B) and 29 of the Act. Pursuant thereto, complaint being C.R.No.II –
90/2005 came to be registered at Shamlaji Police Station. After
completion of the investigation, a chargesheet was filed against the
accused.

2.1 The charge against the accused came to be framed by the trial
Court vide Exhibit 7 for the aforesaid offences against the accused.
On being explained it to them, the accused have denied having
committed any offence. The accused pleaded not guilty to the charge
and pleaded for trial and hence, the case was tried by the learned
Special Judge.

3. It appears from the records that to prove the case, the
prosecution has examined the witnesses in addition to this, the
prosecution has also produced the documentary evidence.

4. After closure of the evidence, the statements of the accused
under section 313 of the Criminal Procedure Code, 1973 have been

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recorded wherein they denied of having committed any offence and
have stated that they are innocent.

5. After hearing both sides and considering the evidence on
records, the trial Court by impugned judgment and order has
acquitted the accused from all the charges levelled against them.

6. Being aggrieved by and dissatisfied with the aforesaid judgment
and order of acquittal the appellant – State of Gujarat has preferred
this appeal.

7. Heard Ms.Jyoti Bhatt, learned Additional Public Prosecutor for
the appellant – State of Gujarat at length. Though served, the accused
have chosen not to appear before the Court.

8. Ms.Bhatt, learned Additional Public Prosecutor for the appellant
has submitted that the impugned judgment and order of acquittal
passed by the Trial Court is contrary to law and the evidence available
on record. She has submitted that the Trial Court erred in holding that
the prosecution had failed to prove its case beyond reasonable doubt.
She has submitted that the contraband articles were found in the
custody of respondent No.1, whereas, respondents No.2, 3 and 4 were
driver and cleaner of the bus bearing registration No. RJ 14-1-P-5758
and the bus was intercepted at the check post near Ratanpur at that
time respondent No.1 was suspected and during the course of
examination by the complainant – police constable, the contraband
article namely ganja was found from the bag which was carried by
respondent No.1. She has submitted that the complainant –
Pramodchandra along with one unarmed constable Virchand have
taken the accused to nearby police station i.e. Shamlaji Police Station.

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The complainant has registered the complaint and in presence of the
PSI, the complainant informed the concerned C.P.I. of Bhiloda who
was the Incharge of the Police Station but since he was on leave
therefore the Dy.S.P., Khedbrahma was informed and he was reached
to the place and in his presence, all the formalities were carried out
by the Investigating Officer and, therefore, the evidence was collected
and after found sufficient material, the prosecution has filed the
charge-sheet against the accused.

8.1 Ms.Bhatt, learned Additional Public Prosecutor for the appellant
has submitted that the prosecution examined several witnesses
including two panchas and also produced the documentary evidence,
except panchas, the prosecution witnesses have supported the case
and through the documentary evidence, the prosecution has led the
evidence to prove the charge against the accused, however, without
proper appreciation oral as well as documentary evidence, the trial
Court erroneously passed the impugned judgment and order of
acquittal.

8.2 Ms.Bhatt, learned Additional Public Prosecutor for the appellant
has submitted that the Trial Court erred in holding that the
prosecution had failed to prove the charge beyond reasonable doubt
against the accused and, therefore, the impugned judgment and
order of acquittal recorded by the Trial Court, which deserves to be
quashed and set aside and the appeal deserves to be allowed.

8.3 Ms.Bhatt, learned Additional Public Prosecutor for the appellant
has submitted that the prosecution has led the evidence which
supports the case of the prosecution and thereby the case was proved
beyond reasonable doubt against the accused, however, the Trial

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Court has not considered the same in its true and proper perspective.
She has further submitted that the prosecution has led the evidence
to the effect that the respondent, who was culprit and from whose
possession the contraband articles namely ganja weighing 2-kilogram
600 gram found from the different bags carried by accused No.1.
However, Ms.Bhatt, learned Additional Public Prosecutor fairly
admitted that so far as respondents No.2, 3 and 4 are concerned,
neither there was material found from their possession nor from the
vehicle, however, the Trial Court has committed serious error of facts
and law in passing the impugned judgment and order of acquittal.

8.4 Ms.Bhatt, learned Additional Public Prosecutor has submitted
that the Trial Court has committed an error in holding that the
accused cannot be charged for the alleged offences of the Act,
despite sufficient evidence establishing the conscious and illegal
possession of the contraband articles of the accused. She has
submitted that P.W.1 – Pramodchandra Sukhdevprasad Pandya and
P.W.2 Virchandbhai Kavjibhai i.e. complainant and accompanied
witnesses, from whose evidence, it was established that accused No.1
was found with contraband articles during inspection and it was
seized from accused No.1 and their evidence were duly corroborated
by the other oral as well as documentary evidence, however, the Trial
Court has, without appreciating the said evidence in its true and
proper perspective, discarded the evidence of those witnesses on the
ground that since panchas have not supported the recovery of
muddamal from the possession of accused No.1, it was supported by
the evidence of the police witnesses and, therefore, it cannot be
ignored and discarded by the Trial Court.

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8.5 In view of the cogent and reliable oral and documentary
evidence, Ms.Bhatt, learned Additional Public Prosecutor has
submitted that the Trial Court ought not to have acquitted the
accused. The findings recorded in the impugned judgment are
contrary to the evidence on record and suffer from serious errors of
appreciation. It is, therefore, submitted that the judgment and order
of acquittal deserves to be quashed and set aside by this Court.

9. Though served, the respondents have chosen not to appear
before the Court and in absence of the submissions on the part of the
respondents, this Court has to look the judgment and order of
acquittal and on perusal of the same and the submissions advanced
by the learned Additional Public Prosecutor and on examining the oral
as well as documentary evidence, this Court has examined the issues
that arises for consideration before this Court for determination are as
under:-

Whether the learned Trial Court committed any error in passing
the impugned judgment and order of acquittal?

Whether the learned Trial Court, while appreciating the
evidence of the prosecution witnesses, has committed any error
of law or fact?

Whether the impugned judgment and order of acquittal suffers
from any illegality or perversity?

10. In light of the aforesaid submissions made by the learned
Additional Public Prosecutor and on perusal of the impugned
judgment and order of acquittal as well as the evidence recorded by
the Trial Court and the issues framed by the Court for determination
are required to be examined in light of the facts and circumstances of

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the present case. If this Court peruses the facts of the present appeal,
it appears that on 30.10.2005, while complainant - P.W.1 and police
constable – P.W.2 serving at Shamlaji Police Station were posted at
Ratanpur Check Post and they were on duty at that time one luxury
bus bearing registration No.RJ-14-1-P-5758 was standing in a queue at
the Check Post, P.W.1 and P.W.2 have checked the said post at that
time passenger sitting on seat No.27 was found in suspicion condition
and he was trying to hide the bag contained contraband article and,
therefore, upon search, it was found that the bag containing
contraband articles was of accused No.1 and, therefore, P.W.1 and
P.W.2 asked the accused that whether he was having any pass or
permit to carry this contraband article upon which he stated that he
had no pass and permit, for which, the complainant asked accused
No.2 and 3 being drivers and accused No.4 being cleaner / conductor
of the bus and all four along with other passengers taken to Ratanpur
Check Post where the complainant immediately informed the PSI,
Shamlaji Police Station and also informed the C.P.I., Bhiloda and since
C.P.I. was not available and hence, the message sent to Dy.S.P.,
Khedbrahma i.e. P.W.6 – Saitansinh Magansinh Chavda about seizure
of contraband article from accused No.1 then panchas were called i.e.
P.W.3 – Rajubhai Kadavabhai Parghi and P.W.4 – Kantibhai Somabhai
Parghi, in whose presence, contraband article was weighing and
weight of the contraband article was approximately 2 kilo 600 gram
and after drawing sample from the said contraband articles, P.W.1
and P.W.2 have completed formalities of the seizure of the muddamal
and, thereafter, the complaint came to be lodged against the
accused.

11. On perusal of the evidence of P.W.1, who was an armed police

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constable, and P.W.2, who was an unarmed police constable, it
appears that they intercepted the bus and, during the course of
checking, suspected accused No.1. Though they were aware that they
were not authorised officers under the Act, they proceeded to search
accused No.1 and thereafter informed the concerned PSI, who was
also not an authorised officer under the Act. Thereafter, P.W.1 and
P.W.2 informed the Dy. S.P., Khedbrahma, who reached the spot after
about one hour, as stated by the witnesses. During the said period, all
the activities relating to weighing, seizing and searching were carried
out by the police constables in the presence of the PSI, i.e. P.W.7. On
perusal of the depositions of P.W.5 – Arjunsinh Javansinh Chauhan,
P.W.6 – Amaraji Bahecharji Desai, and P.W.7 – Saitansinh Magansinh
Chavda, it clearly emerges that, while searching accused No.1, the
police did not follow the procedure prescribed under the Act, which is
mandatory in nature. From the evidence of P.W.5, it emerges that he
specifically admitted that, though he registered the FIR at the behest
of P.W.1 and P.W.7, he did not forward the FIR within 24 hours to the
nearest learned Magistrate. He also did not forward the report to the
higher officer as required under Section 42(2) of the Act, nor did he
intimate the concerned Dy. S.P. regarding the seizure of the
muddamal article and the arrest of the accused. Though the C.P.I. was
present and was in charge of Bhiloda, when a question was put to
P.W.6, he admitted that no charge had been handed over to him by
the Dy. S.P. However, he stated that he had been informed through a
telephonic message and thereafter reached the place of the incident.

12. On perusal of the record and the evidence, it reveals that the
prosecution has not produced any evidence regarding the place
where the muddamal article was weighed or the person by whom it

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was weighed. The prosecution has also not examined the person who
weighed the contraband article or brought on record the place where
it was weighed. Surprisingly, the weight of the contraband article had
already been mentioned in the seizure panchnama at Exhibit 49, even
though no evidence has been produced to establish by whom, at
which place, and in whose presence the contraband article was
weighed. This creates a serious doubt regarding the manner in which
the weight of the contraband article was determined. No evidence
whatsoever has been brought on record regarding the person who
weighed the contraband article, the place where it was weighed, or
the persons who were present at that time.

13. It is admitted by P.W.6 that, when he reached Shamlaji Police
Station, the procedure of drawing the panchnama had already been
completed by P.W.7, P.W.1 and P.W.2. Surprisingly, from the evidence
of P.W.6 and P.W.7, it emerges that it is not brought on record as to
how or by whom P.W.6 was informed about the incident. There is also
no register recording any wireless message or any details of the
telephonic communication. The prosecution has not examined the FSL
expert and has merely produced the FSL report. Thus, the documents
were exhibited without examining their author, which constitutes a
serious lacuna in the prosecution case. It is also a serious lacuna in
the prosecution case that the Investigating Officer, who was not
authorised to investigate the offence, carried out the investigation. It
is admitted by P.W.7 that, initially, the investigation was carried out
by him and, subsequently, by another PSI. However, the said PSI was
not examined by the prosecution to prove its case, for reasons best
known to the prosecution. There are, therefore, serious lacuna in the
investigation. Consequently, after considering the evidence at length,

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the Trial Court recorded cogent reasons as to why the prosecution
case could not be believed. In paragraph 17, the Trial Court recorded
reasons demonstrating how the prosecution had failed to establish
the charge against the accused due to serious lacunae in the
investigation and non-compliance with the mandatory provisions of
Sections 42(2), 50, 55 and 57 of the Act. After referring to the
decisions of the Hon’ble Apex Court, the Trial Court rightly passed the
impugned judgment and order of acquittal.

14. This Court in similar set of facts in Criminal Appeal No. 645 of
2008 filed by the appellant – State of Gujarat decided on 05.08.2026
and dealt with similar provisions of Sections 42, 50, 55 and 57 of the
Act.

15. At this stage, it is appropriate to refer the decision of the Honourable
Apex Court in the case of State of Punjab vs. Balbir Singh reported in
AIR 1994 SC 1872, whereby Hon’ble Apex Court has held as under:-

“Head Note (D) Narcotic Drugs and Psychotropic Substance
Act (61 of 1985), Ss. 50, 41, 42 - Search and Seizure - On
prior information empowered officer acting under S.41(2)
of S.42-Should comply with provisions of S.50-Provisions of
S.50 are mandatory.

17. One another important question that arises for
consideration is whether failure to comply with the
conditions laid down in Section 50 of the NDPS Act by the
empowered or authorised officer while conducting the
search, affects the prosecution case. The said provision
(Section 50) lays down that any officer duly authorised
under Section 42, who is about to search any person under
the provisions of Sections 41, 42 and 43, shall, if such
person so requires, take him without unnecessary delay to
the nearest Gazetted Officer of any of the departments
mentioned in Section 42 or to the nearest Magistrate and if
such requisition is made by the person to be searched, the
authorised officer concerned can detain him until he can
produce him before such Gazetted Officer or the

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Magistrate. After such production, the Gazetted Officer or
the Magistrate, if sees no reasonable ground for search,
may discharge the person. But otherwise he shall direct
that the search be made. To avoid humiliation to females,
it is also provided that no female shall be searched by
anyone except a female. The words "if the person to be
searched so desires" are important. One of the submissions
is whether the person who is about to be searched should
by himself make a request or whether it is obligatory on
the part of the empowered or the authorised officer to
inform such person that if he so requires, he would be
produced before a Gazetted Officer or a Magistrate and
thereafter the search would be conducted. In the context in
which this right has been conferred, it must naturally be
presumed that it is imperative on the part of the officer to
inform the person to be searched of his right that if he so
requires to be searched before a Gazetted Officer or a
Magistrate. To us, it appears that this is a valuable right
given to the person to be searched in the presence of a
Gazetted Officer or a Magistrate if he so requires, since
such a search would impart much more authenticity and
creditworthiness to the proceedings while equally providing
an important safeguard to the accused. To afford such an
opportunity to the person to be searched, he must be
aware of his right and that can be done only by the
authorised officer informing him. The language is clear and
the provision implicitly makes it obligatory on the
authorised officer to inform the person to be searched of
his right.

21. In Miranda v. Arizona17 the Court, considering the
question whether the accused be apprised of his right not
to answer and keep silent while being interrogated by the
police, observed thus :

"At the outset, if a person in custody is to be subjected to
interrogation, he must first be informed in clear and
unequivocal terms that he has the right to remain silent.
For those unaware of the privilege, the warning is needed
simply to make them aware of it the threshold requirement
for an intelligent decision as to its exercise. More
important, such a warning is an absolute prerequisite in
overcoming the inherent pressures of the interrogation
atmosphere."
It was further observed thus :

"The warning of the right to remain silent must be

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accompanied by the explanation that anything said can
and will be used against the individual in court. This
warning is needed in order to make him aware not only of
the privilege, but also of the consequences of foregoing it.
It is only through an awareness of these consequences that
there can be any assurance of real understanding and
intelligent exercise of the privilege. Moreover, this warning
may serve to make the individual more acutely aware that
he is faced with a phase of the adversary system that he is
not in the presence of persons acting solely in his interest."

When such is the importance of a right given to an accused
person in custody in general, the right by way of safeguard
conferred under Section 50 in the context is all the more
important and valuable. Therefore it is to be, taken as an
imperative requirement on the part of the officer intending
to search to inform the person to be searched of his right
that if he so chooses, he will be searched in the presence
of a Gazetted Officer or a Magistrate. Thus the provisions of
Section 50 are mandatory.

25. The question considered above arise frequently before
the trial courts. Therefore we find it necessary to set out
our conclusions which are as follows :

(1) If a police officer without any prior information as
contemplated under the provisions of the NDPS Act makes
a search or arrests a person in the normal course of
investigation into an offence or suspected offences as
provided under the provisions of CrPC and when such
search is completed at that stage Section 50 of the NDPS
Act would not be attracted and the question of complying
with the requirements thereunder would not arise. If during
such search or arrest there is a chance recovery of any
narcotic drug or psychotropic substance then the police
officer, who is not empowered, should inform the
empowered officer who should thereafter proceed in
accordance with the provisions of the NDPS Act. If he
happens to be an empowered officer also, then from that
stage onwards, he should carry out the investigation in
accordance with the other provisions of the NDPS Act.

(2-A) Under Section 41(1) only an empowered Magistrate
can issue warrant for the arrest or for the search in respect
of offences punishable under Chapter IV of the Act etc.
when he has reason to believe that such offences have
been committed or such substances are kept or concealed

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in any building, conveyance or place. When such warrant
for arrest or for search is issued by a Magistrate who is not
empowered, then such search or arrest if carried out would
be illegal.

Likewise only empowered officers or duly authorized
officers as enumerated in Sections 41(2) and 42(1) can act
under the provisions of the NDPS Act. If such arrest or
search is made under the provisions of the NDPS Act by
anyone other than such officers, the same would be illegal.

(2-B) Under Section 41(2) only the empowered officer can
give the authorisation to his subordinate officer to carry out
the arrest of a person or search as mentioned therein. If
there is a contravention, that would affect the prosecution
case and vitiate the conviction.

(2-C) Under Section 42(1) the empowered officer if has a
prior information given by any person, that should
necessarily be taken down in writing. But if he has reason
to believe from personal knowledge that offences under
Chapter IV have been committed or materials which may
furnish evidence of commission of such offences are
concealed in any building etc. he may carry out the arrest
or search without a warrant between sunrise and sunset
and this provision does not mandate that he should record
his reasons of belief. But under the proviso to Section 42(1)
if such officer has to carry out such search between sunset
and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and
contravention of the same would affect the prosecution
case and vitiate the trial.

(3) Under Section 42(2) such empowered officer who takes
down any information in writing or records the grounds
under proviso to Section 42(1) should forthwith send a
copy thereof to his immediate official superior. If there is
total non-compliance of this provision the same affects the
prosecution case. To that extent it is mandatory. But if
there is delay whether it was undue or whether the same
has been explained or not, will be a question of fact in each
case.

(4-A) If a police officer, even if he happens to be an
"empowered" officer while effecting an arrest or search
during normal investigation into offences purely under the

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provisions of Cr. PC fails to strictly comply with the
provisions 'of Sections 100 and 165 Cr. PC including the
requirement to record reasons, such failure would only
amount to an irregularity.

(4-B) If an empowered officer or an authorised officer under
Section 41(2) of the Act carries out a search, he would be
doing so under the provisions of Cr. PC namely Sections
100 and 165 Cr. PC and if there is no strict compliance with
the provisions of Cr. PC then such search would not per se
be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by the
courts while appreciating the evidence in the facts and
circumstances of each case.

(5) On prior information the empowered officer or
authorised officer while acting under Sections 41(2) or 42
should comply with the provisions of Section 50 before the
search of the person is made and such person should be
informed that if he so requires, he shall be produced before
a Gazetted Officer or a Magistrate as provided thereunder.
It is obligatory on the part of such officer to inform the
person to be searched. Failure to inform the person to be
searched and if such person so requires, failure to take him
to the Gazetted Officer or the Magistrate, would amount to
non-compliance of Section 50 which is mandatory and thus
it would affect the prosecution case and vitiate the trial.
After being so informed whether such person opted for
such a course or not would be a question of fact.

(6) The provisions of Sections 52 and 57 which deal with
the steps to be taken by the officers after making arrest or
seizure under Sections 41 to 44 are by themselves not
mandatory. If there is non-compliance or if there are lapses
like delay etc. then the same has to be examined to see
whether any prejudice has been caused to the accused and
such failure will have a bearing on the appreciation of
evidence regarding arrest or seizure as well as on merits of
the case

16. In the decision in case of Karnail Singh v. State of Haryana,
(2009) 8 SCC 539, the Hon’ble Apex Court has held as under:-

“(6) In the light of the above decisions and the principles
enunciated therein, it would be appropriate to refer to

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Section 42 of the NDPS Act which is relevant for the
present purpose as it stood before its amendment by Act 9
of 2001. It reads as under:-

"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,
revenue intelligence or any other department of the
Central Government or of the Border Security Force 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 personal knowledge or
information given by any person and taken down in writing
that any narcotic drug, or psychotropic substance, in
respect of which an offence punishable under Chapter IV
has been committed or any document or other article
which may furnish evidence of the commission of such
offence 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 Chapter IV relating to such drug or substance; 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 Chapter IV relating to such
drug or substance:

Provided 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

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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 forthwith send a copy
thereof to his immediate official superior."

Sub-section (2) as replaced by Act 9 of 2001 is extracted
below:

"(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."

15) Under Section 42(2) as it stood prior to amendment
such empowered officer who takes down any information in
writing or records the grounds under proviso to Section
42(1) should forthwith send a copy thereof to his
immediate official superior. If there is total non-compliance
of this provision the same would adversely affect the
prosecution case and to that extent it is mandatory. But if
there is delay whether it was undue or whether the same
has been explained or not, will be a question of fact in each
case, it is to be concluded that the mandatory enforcement
of the provisions of Section 42 of the Act non-compliance of
which may vitiate a trial has been restricted only to the
provision of sending a copy of the information written down
by the empowered officer to immediate official superior
and not to any other condition of the Section. Abdul Rashid
(supra) has been decided on 01.02.2000 but thereafter
Section 42 has been amended with effect from 02.10.2001
and the time of sending such report of the required
information has been specified to be within 72 hours of
writing down the same. The relaxation by the legislature is
evidently only to uphold the object of the Act. The question
of mandatory application of the provision can be answered
in the light of the said amendment. The non-compliance of
the said provision may not vitiate the trial if it does not
cause any prejudice to the accused.

17. In conclusion, what is to be noticed is Abdul Rashid did
not require literal compliance with the requirements of

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Sections 42(1) and 42(2) nor did Sajan Abraham hold that
the requirements of Section 42(1) and 42(2) need not be
fulfilled at all. The effect of the two decisions was as
follows :

(a) The officer on receiving the information (of the nature
referred to in Sub-section (1) of section

42) from any person had to record it in writing in the
concerned Register and forthwith send a copy to his
immediate official superior, before proceeding to take
action in terms of clauses (a) to (d) of section 42(1).

(b) But if the information was received when the officer
was not in the police station, but while he was on the move
either on patrol duty or otherwise, either by mobile phone,
or other means, and the information calls for immediate
action and any delay would have resulted in the goods or
evidence being removed or destroyed, it would not be
feasible or practical to take down in writing the information
given to him, in such a situation, he could take action as
per clauses (a) to (d) of section 42(1) and thereafter, as
soon as it is practical, record the information in writing and
forthwith inform the same to the official superior .

(c) In other words, the compliance with the requirements of
Sections 42 (1) and 42(2) in regard to writing down the
information received and sending a copy thereof to the
superior officer, should normally precede the entry, search
and seizure by the officer. But in special circumstances
involving emergent situations, the recording of the
information in writing and sending a copy thereof to the
official superior may get postponed by a reasonable period,
that is after the search, entry and seizure. The question is
one of urgency and expediency.

(d) While total non-compliance of requirements of sub-
sections (1) and (2) of section 42 is impermissible, delayed
compliance with satisfactory explanation about the delay
will be acceptable compliance of section 42. To illustrate, if
any delay may result in the accused escaping or the goods
or evidence being destroyed or removed, not recording in
writing the information received, before initiating action, or
non-sending a copy of such information to the official
superior forthwith, may not be treated as violation of
section 42. But if the information was received when the
police officer was in the police station with sufficient time

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to take action, and if the police officer fails to record in
writing the information received, or fails to send a copy
thereof, to the official superior, then it will be a suspicious
circumstance being a clear violation of section 42 of the
Act. Similarly, where the police officer does not record the
information at all, and does not inform the official superior
at all, then also it will be a clear violation of section 42 of
the Act. Whether there is adequate or substantial
compliance with section 42 or not is a question of fact to be
decided in each case. The above position got strengthened
with the amendment to section 42 by Act 9 of 2001”.

17. In the decision in case of Vijaysinh Chandubha Jadeja vs.
State of Gujarat reported in 2011(1) SCC 609, the Hon’ble Apex
Court has held as under:-

“18.Although the Constitution Bench did not decide in
absolute terms the question whether or not Section 50 of
the NDPS Act was directory or mandatory yet it was held
that provisions of sub-section (1) of Section 50 make it
imperative for the empowered officer to "inform" the
person concerned (suspect) about the existence of his right
that if he so requires, he shall be searched before a
gazetted officer or a Magistrate; failure to "inform" the
suspect about the existence of his said right would cause
prejudice to him, and in case he so opts, failure to conduct
his search before a gazetted officer or a Magistrate, may
not vitiate the trial but would render the recovery of the
illicit article suspect and vitiate the conviction and
sentence of an accused, where the conviction has been
recorded only on the basis of the possession of the illicit
article, recovered from the person during a search
conducted in violation of the provisions of Section 50 of the
NDPS Act. The Court also noted that it was not necessary
that the information required to be given under Section 50
should be in a prescribed form or in writing but it was
mandatory that the suspect was made aware of the
existence of his right to be searched before a gazetted
officer or a Magistrate, if so required by him. We
respectfully concur with these conclusions. Any other
interpretation of the provision would make the valuable
right conferred on the suspect illusory and a farce.

19.As noted above, sub-sections (5) and (6) were inserted

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in Section 50 by Act 9 of 2001. It is pertinent to note that
although by the insertion of the said two sub-sections, the
rigour of strict procedural requirement is sought to be
diluted under the circumstances mentioned in the sub-
sections, viz. when the authorised officer has reason to
believe that any delay in search of the person is fraught
with the possibility of the person to be searched parting
with possession of any narcotic drug or psychotropic
substance etc., or article or document, he may proceed to
search the person instead of taking him to the nearest
gazetted officer or Magistrate. However, even in such
cases a safeguard against any arbitrary use of power has
been provided under sub-section (6). Under the said sub-
section, the empowered officer is obliged to send a copy of
the reasons, so recorded, to his immediate official superior
within seventy two hours of the search. In our opinion, the
insertion of these two sub-sections does not obliterates the
mandate of sub-section (1) of Section 50 to inform the
person, to be searched, of his right to be taken before a
gazetted officer or a Magistrate. The object and the effect
of insertion of sub-sections (5) and (6) were considered by
a Constitution Bench of this Court, of which one of us (D.K.
Jain, J.) was a member, in Karnail Singh Vs. State of
Haryana13. Although in the said decision the Court did
observe that by virtue of insertion of sub-sections (5) and
(6), the mandate given in Baldev Singh's case (supra) is
diluted but the Court also opined that it cannot be said that
by the said insertion, the protection or safeguards given to
the suspect have been taken away completely. The Court
observed :-

"Through this amendment the strict procedural
requirement as mandated by Baldev Singh case was
avoided as relaxation and fixing of the reasonable time to
send the record to the superior official as well as exercise
of Section 100 CrPC was included by the legislature. The
effect conferred upon the previously mandated strict
compliance with Section 50 by Baldev Singh case was that
the procedural requirements which may have handicapped
an emergency requirement of search and seizure and give
the suspect a chance to escape were made directory based
on the reasonableness of such emergency situation.
Though it cannot be said that the protection or safeguard
given to the suspects have been taken away completely
but certain flexibility in the procedural norms were adopted
only (2009) 8 SCC 539 to balance an urgent situation. As a
consequence the mandate given in Baldev Singh case is

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diluted."

22.In view of the foregoing discussion, we are of the firm
opinion that the object with which right under Section 50(1)
of the NDPS Act, by way of a safeguard, has been conferred
on the suspect, viz. to check the misuse of power, to avoid
harm to innocent persons and to minimise the allegations
of planting or foisting of false cases by the law
enforcement agencies, it would be imperative on the part
of the empowered officer to apprise the person intended to
be searched of his right to be searched before a gazetted
officer or a Magistrate. We have no hesitation in holding
that in so far as the obligation of the authorised officer
under sub-section (1) of Section 50 of the NDPS Act is
concerned, it is mandatory and requires a strict
compliance. Failure to comply with the provision would
render the recovery of the illicit article suspect and vitiate
the conviction if the same is recorded only on the basis of
the recovery of the illicit article from the person of the
accused during such search. Thereafter, the suspect may
or may not choose to exercise the right provided to him
under the said provision. As observed in Re Presidential
Poll14, it is the duty of the courts to get at the real
intention of the Legislature by carefully attending to the
whole scope of the provision to be construed. "The key to
the opening of every law is the reason and spirit of the law,
it is the animus imponentis, the intention of the law maker
expressed in the law itself, taken as a whole." We are of
the opinion that the concept of "substantial compliance"
with the requirement of Section 50 of the NDPS Act
introduced and read into the mandate of the said Section in
Joseph Fernandez (supra) and Prabha Shankar Dubey
(supra) is neither borne out from the language of sub-
section (1) of Section 50 nor it is in consonance with the
dictum laid down in Baldev Singh's case (supra). Needless
to add that the question whether or not the procedure
prescribed has been followed and the requirement of
Section 50 had been met, is a matter of trial. It would
neither be possible nor feasible to lay down any absolute
formula in that behalf. We also feel that though Section 50
gives an option to the empowered officer to take such
person (suspect) either before the nearest gazetted officer
or the Magistrate but in order to impart authenticity,
transparency and creditworthiness to the entire
proceedings, in the first instance, an endeavour should be
to produce the suspect before the nearest Magistrate, who
enjoys more confidence of (1974) 2 SCC 33 the common

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man compared to any other officer. It would not only add
legitimacy to the search proceedings, it may verily
strengthen the prosecution as well.”

18. In the decision in case of State of Himachal Pradesh vs. Surat
Singh reported in 2026 (0) AIJEL SC 76708 the Hon’ble Apex Court has
held as under:-

“18. Their lordships of the Hon'ble Supreme Court in the case of
Suresh and others versus State of Madhya Pradesh, reported in
(2013) 1 SCC 550, have held that in a case where the accused
were merely asked whether they would offer their personal
search to police officer concerned or to gazetted officer and the
appellants gave their consent for their personal search by police
officer concerned, it will amount to non-compliance of Section
50(1) of the ND & PS Act. Their lordships have held as follows:

"16) The above Panchnama indicates that the appellants were
merely asked to give their consent for search by the police party
and not apprised of their legal right provided under Section 50 of
the NDPS Act to refuse/to allow the police party to take their
search and opt for being searched before the Gazetted officer or
by the Magistrate. In other words, a reading of the Panchnama
makes it clear that the appellants were not apprised about their
right to be searched before a gazetted officer or a Magistrate but
consent was sought for their personal search. Merely asking
them as to whether they would offer their personal search to
him, i.e. the police officer or to gazetted officer may not satisfy
the protection afforded under Section 50 of the NDPS Act as
interpreted in Baldev singh's case.

17. Further a reading of the judgments of the trial Court and the
High Court also show that in the presence of Panchas, the SHO
merely asked all the three appellants for their search by him and
they simply agreed. This is reflected in the Panchnama. Though
in Baldev Singh's case, this Court has not expressed any opinion
as to whether the provisions of Section 50 are mandatory or
directory but "failure to inform" the person concerned of his right
as emanating from sub-section (1) of Section 50 may render the
recovery of the contraband suspect and the conviction and
sentence of an accused bad and unsustainable in law. In
Vijaysinh Chan Jadeja's case (supra), recently the Constitution
Bench has explained the mandate provided under sub-section
(1) of Section 50 and concluded that it is mandatory and
requires strict compliance. The Bench also held that failure to
comply with the provision would render the recovery of the illicit
article suspect and vitiate the conviction if the same is recorded
only on the basis of the recovery of the illicit article from the

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person of the accused during such search. The concept of
substantial compliance as noted in Joseph Fernadez (supra) and
Prabha Shankar Dubey (supra) were not acceptable by the
Constitution Bench in Vijaysinh Chandubha Jadeja, accordingly,
in view of the language as evident from the panchnama which
we have quoted earlier, we hold that, in the case on hand, the
search and seizure of the suspect from the person of the
appellants is bad and conviction is unsustainable in law."

18. Their lordships of the Hon'ble Supreme Court in case of State
of Rajasthan versus Parmanand and another, reported in (2014)
5 SCC 345, have held that if merely a bag is carried by person is
searched without there being any search of his person, S. 50 will
have no application but if bag carried by him is searched and his
person is also searched, S. 50 would be attracted. Their lordships
have also held that it was improper for PW-10 S.I. "Q" to tell
respondents that a third alternative was available. It has been
held as follows:

15. “Thus, if merely a bag carried by a person is searched
without there being any search of his person, Section 50 of the
NDPS Act will have no application. But if the bag carried by him
is searched and his person is also searched, Section 50 of the
NDPS Act will have application. In this case, respondent No.1
Parmanand's bag was searched. From the bag, opium was
recovered. His personal search was also carried out. Personal
search of respondent No.2 Surajmal was also conducted.
Therefore, in light of judgments of this Court mentioned in the
preceding paragraphs, Section 50 of the NDPS Act will have
application.”

19. It is also worthwhile to refer the decision of the Hon’ble Apex
Court in case of State of Rajasthan vs. Jag Raj Singh reported in
2016 (11) SCC 687 and in the case of Boota Singh vs. State of
Haryana reported in 2021 (19) SCC 606 whereby in similar set of
facts the Hon’ble Apex Court has deal with Sections 42, 43 and 50 of
the NDPS Act.

20. Thus, the basic requirement under Section 42(2) as laid down
under the Act r/w. Sections 55 and 57 of the Act was also not
complied with in the present case at the time of conducting the
search of the present respondent No.1 in the presence of the panch

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witnesses. There is no evidence on record to establish that the
respondent was informed of his right to have his search conducted in
the presence of a Gazetted Officer or a Magistrate, as required under
the said provision. From the evidence of none of the witnesses does it
emerge that the mandatory requirement under Section 50 of the
NDPS Act was duly complied with. Mere denial by the present
respondent cannot dispense with the statutory requirement. The
concerned authority was required to inform the respondent of his
legal right and, if he so desired, to produce him before the nearest
Gazetted Officer or Magistrate, as observed by the Hon'ble Apex Court
in the decisions referred to hereinabove.

21. Even prima facie on perusal of the panchnama of the seizure of
Mudammal and the report of the chemical analyzer also creates a
doubt that whether the actually it was a ganja or not as it is provided
under the provision of Section 2 (iii)(b) of the NDPS Act, which reads
as under:-

“2. (iii) “cannabis (hemp)” means—

(a) xxx xxx xxx

(b) ganja, that is, the flowering or fruiting tops of the
cannabis plant (excluding the seeds and leaves when not
accompanied by the tops), by whatever name they may be
known or designated”

22. Now, upon perusal of the provisions of Section 2(b) of the NDPS
Act and considering the evidence of the witnesses vis-à-vis the
panchnama, it is not established with certainty as to whether the
actual muddamal seized from the possession of the respondent was
ganja or hemp. There is no specific opinion of the Chemical Analyser
on record establishing that the seized substance was ganja. In fact, it

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was mentioned that it was a leaf, fruits and therefore after
considering all this fact, it is not proved by the prosecution in its true
and proper perspective.

23. In view of the aforesaid circumstances, the Trial Court recorded
a finding that the prosecution had failed to establish the basic
ingredients of the offence against the present respondent. After
considering the evidence on record and relying upon the decisions
referred to in the impugned judgment, the Trial Court recorded cogent
reasons and ultimately passed the impugned judgment and order of
acquittal. Even, the Trial Court has observed that the prosecution has
not complied with the mandatory provisions namely Sections 42(1)(2),
50, 55 and 57 of the NDPS Act and after referring the decisions of the
Hon’ble Apex Court has rightly passed the impugned judgment and
order of acquittal.

24. Further, on perusal of the record of the appeal, it transpires that
the respondent-accused has established his innocence before the Trial
Court and that, after due appreciation of the oral as well as
documentary evidence and other material placed on record, the Trial
Court has rightly passed the impugned judgment and order of
acquittal. The findings recorded by the Trial Court are just, proper and
in accordance with the settled principles of law and, therefore, no
interference is warranted by this Court.

25. It is well settled by catena of decisions that the Appellate Court
has full power to review, re-appreciate and reconsider the evidence
upon which the order of acquittal is founded. However, Appellate
Court must bear in mind that in case of acquittal there is double
presumption in favour of the accused. Firstly, the presumption of

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innocence is 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 their innocence is further reinforced, reaffirmed and strengthened
by the trial Court.

26. Further, 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. Further, while
exercising the powers in appeal against the order of acquittal, the
Court of appeal would not ordinarily interfere with the order of
acquittal unless the approach of the lower Court is vitiated by some
manifest illegality and the conclusion arrived at would not be arrived
at by any reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are possible, the
Court of appeal would not take the view which would upset the
judgment delivered by the Court below. However, the Appellate Court
has a power to review the evidence if it is of the view that the
conclusion arrived at by the Court below is perverse and the Court has
committed a manifest error of law and ignored the material evidence
on record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to find out whether
the accused are connected with the commission of the crime with
which he is charged.

27. The scope and principles are enunciated by the Hon’ble Apex
Court in case of Chandrappa and others Vs. State of Karnataka
reported in (2007) 4 SCC 415, more particularly paragraph Nos.

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42 and 43, which was subsequently re-affirmed by the Hon’ble Apex
Court Rajesh Prasad Vs. State of Bihar and another, reported in
[2022] 3 SCC 471, wherein, the Hon’ble Apex Court has enunciated
the general principles in case of acquittal, more particularly in
paragraph No. 26 the general principles are set out by the Hon’ble
Apex Court based upon various decisions of the Hon’ble Apex Court.
Then in case of Babu Sahebagouda Rudragoudar Vs. State of
Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149,
the Hon'ble Apex Court has dealt with the similar issue, more
particularly, in paragraph Nos. 37 to 40. Hence, I am in complete
agreement with the findings recorded by the trial Court.

28. It is also worthwhile to refer to the recent decision of the
Hon’ble Supreme Court in the case of Ramesh vs. State of
Karnataka, reported in [2024] 9 SCC 169, wherein the Hon’ble
Supreme Court has held and observed in paras-20 and 21 as under:-

“20. At this stage, it would be relevant to refer to the
general principles culled out by this Court in Chandrappa
and others vs. State of Karnataka , regarding the power of
the appellate Court while dealing with an appeal against a
judgment of acquittal. The principles read thus:

“42. …. (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.

(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

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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 is
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.

21. In Rajendra Prasad v. State of Bihar, a three-Judge
Bench of this Court pointed out that it would be essential
for the High Court, in an appeal against acquittal, to clearly
indicate firm and weighty grounds from the record for
discarding the reasons of the Trial Court in order to be able
to reach a contrary conclusion of guilt of the accused. It
was further observed that, in an appeal against acquittal, it
would not be legally sufficient for the High Court to take a
contrary view about the credibility of witnesses and it is
absolutely imperative that the High Court convincingly
finds it well-nigh impossible for the Trial Court to reject
their testimony. This was identified as the quintessence of
the jurisprudential aspect of criminal justice. Viewed in this
light, the brusque approach of the High Court in dealing
with the appeal, resulting in the conviction of Appellant
Nos. 1 and 2, reversing the cogent and well-considered
judgment of acquittal by the Trial Court giving them the
benefit of doubt, cannot be sustained.”

29. Considering the entire evidence on record, it clearly appears
that there is no credible evidence to connect the present accused with
the alleged crime and the evidence on record is not so convincing to
prove beyond reasonable doubt that the accused has committed the

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alleged crime. Therefore, the accused cannot be convicted on the
evidence on record.

30. On perusal of the impugned judgment and order, it clearly
transpires that the trial Court has not committed any error of fact and
law in appreciating the evidence on record and in acquitting the
accused from the charges levelled against them. Even on re-
appreciation of the evidence, it clearly transpires that the prosecution
has miserably failed to prove the charge levelled against the accused
beyond reasonable doubt. Therefore, the impugned judgment and
order of the trial Court is sustainable and the present appeal is liable
to be dismissed.

31. In view of the above, the present appeal is devoid of merits and
it deserves to be dismissed. Resultantly, it is dismissed. The
impugned judgment and order of acquittal passed by the Trial Court is
hereby confirmed. Bail bond stands cancelled. Record and
proceedings be sent back to the concerned Trial Court forthwith.

(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: VIJAYKUMAR RAMESHBHAI PANCHAL(HC00171), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 19/08/2026 17:22:50

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