STATE OF GUJARATversusSHANTILAL RUPAJI KHARADI

     R/CR.A/2005/2009                                JUDGMENT DATED: 19/08/2026




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 2005 of 2009

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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

                   Approved for Reporting                 Yes           No
                                                          ✔
==================================================
                                 STATE OF GUJARAT
                                       Versus
                              SHANTILAL RUPAJI KHARADI
==================================================
Appearance:
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
NON BAILABLE WARRANT NOT RECEIVED BACK for the
Opponent(s)/Respondent(s) No. 1
==================================================

     CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                                 Date : 19/08/2026

                                    JUDGMENT


1.      The appellant - State of Gujarat has preferred this appeal under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘the Code’ for short) against the judgment
and order dated 17.06.2009 passed by the learned Special Judge
(N.D.P.S.), Himmatnagar, Camp at Idar (hereinafter be referred to as
“the trial Court”) in Special (N.D.P.S.) Case No.3 of 2006, whereby the
trial Court has acquitted the original accused (respondent herein)
from the offences punishable under Sections 8 and 20 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter be referred
to as the “NDPS Act”).


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2.        Short facts of the prosecution case are that the complainant
viz., R.A. Patel, who was discharging his duty as Police Inspector with
Shamlaji Police Station, had received one intelligence tips about the
alleged offence on 15.05.1991. In pursuance of said information, after
verifying the same, entry to that effect was made in the Station Diary
of Shamlaji Police Station and informed the Superior Officer.
Thereafter, two panchas were called and also informed to FSL Officer.
Two panchas were introduced with the staff members and made to
understand the contents of the complainant. Thereafter, preliminary
panchnama was prepared. After completing other formalities, they
proceeded in a Government vehicle along with his staff and FSL
Officer as well as two panch witnesses to the scene of offence and
raided the premises, where they found two persons. Upon asking their
whereabouts, they disclosed their names as Narayanbhai Kharadi
resident of Rajashthan, who died during the course of trial and case
against him came to be abated, and Shantilal Rupaji Kharadi, resident
of    Rajashthan        (present   respondent-accused).   After    introducing
themselves as Police personnel, they asked accused that they had
information about the stock of Ganja lying with them and, thereafter,
in the presence of the panch witnesses, upon making search, the
complainant found stock of Ganja from their bag, which were
examined by the complainant as well as the Experts of the Forensic
Science Laboratory at the spot and the substance was found to be a
Ganja - a prohibited drug, which was 2.500 Kg. Gram worth of
Rs.2,000/-. Upon asking the pass permit, the accused did not have
any such documents. The accused came to be arrested on the spot
under panchnama. Thereby, the accused have committed alleged
offences.



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2.2      Accordingly, offence being C.R.No.II-25/1995 came to be
registered with Shamlaji Police Station under Sections 8 and 20 of the
Narcotic Drugs and Psychotropic Substances Act, 1985. On the basis
of the complaint, the investigation was embarked upon.


2.3      On conclusion of the investigation, on the basis of the material
collected against the respondent-accused, since the Investigating
Officer found a prima-facie case against the respondent-accused,
chargesheet came to be filed before the Court of the learned Judicial
Magistrate, First Class, Bhiloda. Since the case registered against the
respondent-accused was exclusively triable by the Court of Special
Judge, the learned Judicial Magistrate, First Class, Bhiloda committed
the case to the Court of Special Judge, Sabarkantha under Section 209
of the Code of Criminal Procedure, which came to be registered as
Special (N.D.P.S.) Case No.3 of 2006.


2.4      Thereafter, the case was transferred and placed for trial before
the learned Special Judge, (N.D.P.S.), Himmatnagar, Camp Idar, who
had initially framed charge for the offences punishable under Sections
8 and 20 of the Narcotic Drugs and Psychotropic Substances Act,
1985 vide Exh.5. The charge was read over and explained. However,
the respondent-accused pleaded not guilty to the charge and claimed
to be tried.


3.       In order to bring home the charge leveled against the accused
persons, the prosecution has examined as many as 06 witnesses and
relied upon their oral testimony, the details of which have been given
in paragraph no.5(A) of the impugned Judgment and Order i.e.
Prosecution Witness No.1 viz., Ajitsinh Himmatsinh Dabhi at Exh.8,
Prosecution Witness No.2 viz., Chhatrasinh Kalusinh Zala at Exh.9,


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Prosecution Witness No.3 viz., Bharatkumar Shantilal Pandya at
Exh.11, Prosecution Witness No.4 viz., Davanand Kamji Pandor at
Exh.15, Prosecution Witness No.5 viz., Ramabhai Amthabhai Patel at
Exh.16 and Prosecution Witness No.6 viz., Kashiram Khemchandbhai
Shrimali at Exh.19.


4.      The prosecution has also produced 04 documents and relied
upon the contents of the same, the details of which have been given
in Paragraph No.5(B) the impugned Judgment and Order i.e. complaint
at Exh.17, panchnama at Exh.12, FSL Report at Exh.19 and slips of
panchnama at Exh.13-14.


5.      After closure of the evidence, the statement of the accused
under section 313 of the Criminal Procedure Code, 1973 has been
recorded wherein he denied of having committed any offence and
have stated that he is innocent.


6.      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 him.


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


8.      Heard Ms.Jirga Jhaveri, learned Additional Public Prosecutor for
the appellant – State of Gujarat.


9.      Ms.Jhaveri, learned Additional Public Prosecutor appearing for
the appellant – State of Gujarat has submitted the same facts which


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are narrated in the memo of appeal and has also submitted that the
prosecution has examined witnesses and produced documentary
evidence, despite this fact, the trial Court has not considered the
same in its true and proper perspective in passing the judgment and
order of acquittal. Ms.Jhaveri, learned Additional Public Prosecutor,
while referring to the entire oral as well as documentary evidence,
has assailed the impugned judgment and order and submitted that
the trial Court has not taken into consideration the evidence
connecting the accused to the alleged offence in its proper
perspective and even the prosecution has been able to prove the
charges levelled against the accused. While referring to the evidence
of the witnesses and the material collected against the accused,
Ms.Jhaveri, learned Additional Public Prosecutor has submitted that
the prosecution has established the case against the accused by
examining the witnesses, who have supported the case of the
prosecution, however, the trial Court has discarded and disbelieved
the evidence of these witnesses. She has submitted that the
witnesses have fully supported the case of the prosecution, however,
the trial Court has not appreciated the same and passed the judgment
and order of acquittal which is illegal and unjust. She has submitted
that it is settled legal position that the evidence of a single witness is
sufficient for conviction if the same is reliable and trustworthy and in
the present case, though the evidence of all the witnesses are reliable
and trustworthy, without any cogent reason, the trial Court has
disbelieved and discarded the evidence of the witnesses.


9.1      Ms.Jhaveri, learned Additional Public Prosecutor, has submitted
that the prosecution has proved that the respondent-accused along
with one Narayanbhai Kharadi were carrying one cotton bag wherein,
the narcotic substance (Ganja) was found, however, the trial Court


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has disbelieved the said aspect while passing the impugned judgment
and order. According to Ms.Jhaveri, learned Additional Public
Prosecutor, the trial Court ought to have convicted the accused and
ought to have imposed necessary sentence. She has prayed to allow
the present appeal and to quash and set aside the impugned
judgment and order of acquittal.


10.      On perusal of the impugned judgment and order of acquittal
passed by the trial Court, the questions arise for determination are as
under:-

(1)        whether the trial Court is justified in passing the judgment and
           order of acquittal.
(2)        whether the trial Court has rightly appreciated the evidence
           led by the prosecution in recording the reasons.
(3)        whether there is any illegality, irregularity or any perversity in
           the impugned judgment and order of acquittal.


11.        I have heard the learned counsel appearing for the respective
parties and perused the material placed on record. I have also gone
through the impugned judgment and order passed by the trial Court.
It is necessary to first examine the facts of the case as adhered by the
appellant before the trial Court. That on 15.05.1992, at about 2:15
hours, while the complainant, along with other police officers, was on
duty, they noticed the accused, namely Naran Devji Kharadi, along
with the present respondent, carrying a bag containing a narcotic
substance, namely Ganja. Upon inspecting and searching the two
persons, the investigation team recovered Ganja from the bag carried
by accused Naran Devji Kharadi. Thereafter, the accused persons



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were immediately taken to the nearest police station, and after
completing the formalities prescribed under law, an FIR was lodged
against both accused persons under Sections 8 and 20 of the NDPS
Act.


12.      While considering the charge, it was stated that the contraband
substance (Ganja) was recovered from the possession of accused
Naran Devji Kharadi. However, the present respondent was neither
carrying any bag nor was any incriminating article found in his
personal possession. At this juncture, it would be appropriate to refer
to the definition of ‘Ganja’ as referred under Section 2(3)(b) of the
NDPS Act, which reads as under :

         2(iii)"cannabis (hemp)" means—

         (a) charas, that is, the separated resin, in whatever form, whether crude or
         purified, obtained from the cannabis plant and also includes concentrated
         preparation and resin known as hashish oil or liquid hashish;

         (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; and

         (c) any mixture, with or without any neutral material, of any of the above
         forms of cannabis or any drink prepared therefrom;


13.      The charge was framed on 01.01.2009. Thereafter, the
prosecution led both oral and documentary evidence before the
learned Trial Court, and the trial proceeded accordingly. The
prosecution examined six witnesses to prove the charge against the
accused persons and also produced four documentary pieces of
evidence before the learned Trial Court, as referred to in paragraph 4
of the impugned judgment and order.


14.      PW-1 – Ajitsinh Himmatsinh Dabhi, who was serving as an


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   R/CR.A/2005/2009                                      JUDGMENT DATED: 19/08/2026




Armed Police Constable at Shamlaji Police Station, deposed that on
14.05.1992, at about 20:00 hours, he, along with other police
personnel, including PSI R.A. Patel, Head Constable Raghuvirsinh
Jamadar, and driver Chhatrasinh, was on highway-patrolling duty. At
that time, when they reached Shamlaji Cross Road near the Guest
House,     they       noticed   officers   of    the   Prohibition    Department,
Himmatnagar, also patrolling in the area. PW-1 and other officers had
stopped two persons, namely, Naran Devji Kharadi and the present
respondent, Shantilal Rupaji Kharadi, on suspicion. Upon searching
them, they found that Naran was carrying a cotton bag containing a
green-coloured substance, including leaves and seeds. Thereafter,
both accused persons were taken to Shamlaji Police Station. They also
called the panch witnesses and a person to weigh the substance.
After completing the necessary formalities, including preparation of
the panchnama and drawing and sealing the sample of the substance,
the sample was sent to the FSL for its opinion. If we examine the
provisions of Sections 41, 42 and 43, where the police officers suspect
any person of being in possession of a contraband substance, they
are required to comply with the prescribed statutory safeguards
before conducting the search. However, from the evidence of the
police personnel, it does not emerge that the mandatory formalities
contemplated under Sections 41, 42 and 43, read with Sections 50
and 57, were duly complied with. There is no evidence to establish
whether the suspects were informed of their legal rights before the
search or whether the other procedural requirements prescribed
under the aforesaid provisions were followed. Sections 41, 42, 43, 50
and 57 are reproduced hereunder :

      41. Power to issue warrant and authorisation.—

      (1) A Metropolitan Magistrate or a Magistrate of the first class or any



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R/CR.A/2005/2009                                     JUDGMENT DATED: 19/08/2026




   Magistrate of the second-class specially empowered by the State
   Government in this behalf, may issue a warrant for the arrest of any person
   whom he has reason to believe to have committed any offence punishable
   under this Act, or for the search, whether by day or by night, of any
   building, conveyance or place in which he has reason to believe 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.

   (2) Any such officer of gazetted rank of the departments of central excise,
   narcotics, customs, revenue intelligence or any other department of the
   Central Government including the paramilitary forces or the armed forces
   as is empowered in this behalf by general or special order by the Central
   Government, or any such officer 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 in writing that any person has committed an offence
   punishable under this Act or that any narcotic drug or psychotropic
   substance or controlled substance in respect of which any offence 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 place, may authorise any officer subordinate to him
   but superior in rank to a peon, sepoy or a constable to arrest such a person
   or search a building, conveyance or place whether by day or by night or
   himself arrest such person or search a building, conveyance or place.

   (3) The officer to whom a warrant under sub-section (1) is addressed and
   the officer who authorised the arrest or search or the officer who is so
   authorised under sub-section (2) shall have all the powers of an officer
   acting under section 42.

   42. Power of entry, search, seizure and arrest without warrant or
   authorisation.-- (l) Any such officer (being an officer superior in rank to a
   peon, sepoy or constable) of the departments of central excise, narcotics,
   customs, revenue intellegence or any other department of the Central
   Government including para-military 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 personal knowledge or information given by any
   person and taken down in writing that any narcotic drug, or psychotropic



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   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 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.]

   43. Power of seizure and arrest in public place. -- Any officer of any of
   the departments mentioned in section 42 may

   (a) seize in any public place or in transit, any narcotic drug or psychotropic
   substance or controlled substance in respect of which he has reason to
   believe an offence punishable under this Act has been committed, and,
   along with such drug or substance, any animal or conveyance or article
   liable to confiscation under this Act, any document or other article which he
   has reason to believe may furnish evidence of the commission of an offence



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   punishable under this Act 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;

   (b) detain and search any person whom he has reason to believe to have
   committed an offence punishable under this Act, and if such person has any
   narcotic drug or psychotropic substance or controlled substance in his
   possession and such possession appears to him to be unlawful, arrest him
   and any other person in his company.

   Explanation.-- For the purposes of this section, the expression "public
   place" includes any public conveyance, hotel, shop, or other place intended
   for use by, or accessible to, the public.]

   50. Conditions under which search of persons shall be conducted.—

   (1) When any officer duly authorised under section 42 is about to search
   any person under the provisions of section 41, section 42 or section 43, he
   shall, if such person so requires, take such person without unnecessary
   delay to nearest Gazetted Officer of any of the departments mentioned in
   section 42 or to the nearest Magistrate.

   (2) If such requisition is made, the officer may detain the person until he
   can bring him before the Gazetted Officer or the Magistrate referred to in
   sub-section (1).

   (3) The Gazetted Officer or the Magistrate before whom any such person is
   brought shall, if he sees no reasonable ground for search, forthwith
   discharge the person but otherwise shall direct that search be made.

   (4) No female shall be searched by anyone excepting a female.

   [(5) When an officer duly authorised under section 42 has reason to believe
   that it is not possible to take the person to be searched to the nearest
   Gazetted Officer or Magistrate without the possibility of the person to be
   searched parting with possession of any narcotic drug or psychotropic
   substance, or controlled substance or article or document, he may, instead
   of taking such person to the nearest Gazetted Officer or Magistrate,
   proceed to search the person as provided under section100 of the Code of
   Criminal Procedure, 1973 (2 of 1974).

   (6) After a search is conducted under sub-section (5), the officer shall
   record the reasons for such belief which necessitated such search and
   within seventy-two hours send a copy thereof to his immediate official
   superior.]

   57. Report of arrest and seizure.—Whenever any person makes any
   arrest or seizure under this Act, he shall, within forty-eight hours next after
   such arrest or seizure, make a full report of all the particulars of such arrest
   or seizure to his immediate official superior.




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         [57A. Report of seizure of property of the person arrested by the notified
         officer.—Whenever any officer notified under section 53 makes an arrest or
         seizure under this Act, and the provisions of Chapter VA apply to any
         person involved in the case of such arrest or seizure, the officer shall make
         a report of the illegally acquired properties of such person to the
         jurisdictional competent authority within ninety days of the arrest or
         seizure].


15.      The prosecution has examined six witnesses, including two
panch witnesses, namely PW-3 and PW-4, both of whom have not
supported the case of the prosecution. If we examine the evidence of
PW-3, it emerges from his cross-examination that one Nitinkumar
Shantilal was called with weighing scales and that he had weighed the
narcotic substance allegedly seized from the accused. However, the
prosecution has not examined the said Nitinkumar as a witness to
establish and prove that the seized substance weighed 2.500 kg. Even
the deposition of PW-3 at Exh. 11 and the panchnama at Exh. 12
clearly reveal that the prosecution has failed to comply with the
mandatory provisions contained in the statute.


16.      If we examine the evidence of PW-4 at Exh. 15, he has also not
supported the case of the prosecution. However, from his cross-
examination, it is revealed that the psychotropic substance was found
from accused Naran Devji Kharadi. PW-5, who was serving as PSI and
had accompanied PW-1 during the night highway patrolling along with
other police personnel, has also deposed in a manner that raises a
serious       question    regarding     the     involvement      of    the    present
respondent. Since Naran Devji Kharadi, from whom the psychotropic
substance was allegedly seized, was not present before the Trial
Court and hence, there is no evidence to establish that on what basis
the present respondent was charged with the alleged offence. In fact,
no evidence worth the name has been produced by the prosecution to
establish the basis on which the present respondent was arraigned as

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an accused for the alleged offence.

17.      At this stage, it is appropriate to refer to the decision of the
Hon’ble 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 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


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   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 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 in any
   building, conveyance or place. When such warrant for arrest or for search is



                                Page 14 of 28
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   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 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



                                 Page 15 of 28
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         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

18.      It would also be appropriate to refer to the decision in case of
H.I. Majmudar, Intelligence Officer vs. Santosh Pandurang
Setty reported in 2026 (0) AIJEL HC 253136, whereby the
Hon’ble Apex Court has held as under:-

         ‘Heard Note (c) Narcotic Drugs and Psychotropic Substances Act, 1985, Ss.
         42, 50 and 57- Search and seizure Mandatory provisions - Non-compliance -
         At the time of search and seizure, there was clear violation of S. 42 of the
         NDPS Act - Held, provision of search and seizure under S. 42 is mandatory
         and non-compliance thereof is impermissible under law - Reliance placed on
         Boota Singh v. State of Haryana, (2021) 19 SCC 606; Karnail Singh v. State
         of Haryana, (2009) 8 SCC 539; Sukhdev Singh v. State of Haryana, (2013) 2
         SCC 212; State of Rajasthan v. Jagraj Singh @ Hansa, (2016) 11 SCC 687.

         8. Further, re-appreciating the evidence, it appears that, as per the case of
         the prosecution, the statements of the witnesses were recorded and as per
         the case of the prosecution, the accused Nos. 1 to 3 were engaged in
         transportation of contraband, and the said fact is revealed on basis of
         statements of the co-accused i.e., accused Nos. 2 and 3, but nowhere has
         any evidence supported the said contention, and in absence of any legal
         evidence qua involvement of the accused, more particularly how and from
         where the contraband was loaded and shifted to the godown, no evidence
         on record, and even no independent witness has supported the case of the
         prosecution qua the alleged conspiracy or meeting of minds on the part of
         the accused persons. Even as per the complaint, the prosecution has relied
         upon the statements of the accused persons as incriminating evidence, and
         such inculpatory statements are also not true which support any evidence
         and no corroborative piece of evidence is on record to show that the
         accused has hatched conspiracy and engaged in transportation of huge


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         contraband. The only evidence led before the learned Sessions Court is that
         the accused No.2 was present at the time of raid, and it is stated that
         contraband was seized from his possession but no evidence qua accused
         Nos. 1 and 3 has been collected. Not only that, the ownership of the
         godown is also not proved and the owner of the godown is not cited as a
         witness. The independent witness, Deepak Parikh, turned hostile and has
         not supported the case of the prosecution. Even based on whatever
         allegations are levelled against the accused and evidence led, it clearly
         reveals that the prosecution has not followed the mandatory provisions for
         search and seizure under the NDPS Act. At the time of search, there was a
         clear violation of Section 42 of the NDPS Act and the learned Sessions Judge
         has also assigned reason for that qua violation of Sections 42, 50 and 57 of
         the NDPS Act. The provision of search and seizure under Section 42 is
         mandatory and in this regard, reference is required to be made to the
         judgments of the Hon'ble Apex Court in the case of Boota Singh Vs. The
         State of Haryana reported in (2021) 19 SCC 606; Karnail Singh Vs. State of
         Haryana reported in (2009) 8 SCC 539; Sukhdev Singh Vs. State of Haryana,
         reported in (2013) 2 SCC 212, and State of Rajasthan Vs. Jagraj Singh @
         Hansa, reported in (2016) 11 SCC 687. Non-compliance of the mandatory
         provision of Section 42 is absolutely clear from the record and such non-
         compliance is impermissible under the law. Hence, the learned Sessions
         Judge has not committed any error in recording findings qua non-
         compliance of mandatory provisions under the NDPS Act.”

19.      In the decision in case of Karnail Singh vs. State of Haryana
reported in (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 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,--


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   (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 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


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   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 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 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



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         above position got strengthened with the amendment to section 42 by Act
         9 of 2001”.

20.      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 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


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   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 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



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         instance, an endeavour should be to produce the suspect before the
         nearest Magistrate, who enjoys more confidence of (1974) 2 SCC 33 the
         common man compared to any other officer. It would not only add
         legitimacy to the search proceedings, it may verily strengthen the
         prosecution as well.”

21.      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 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


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         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.”


22.      It is also worthwhile to refer to the decisions 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 dealt with Sections 42,
43 and 50 of the NDPS Act.


23.      Thus, the basic requirement under Section 50 of the NDPS Act
was also not complied with in the present case at the time of
conducting the search of the respondents-accused in the presence of
the panch witnesses. There is no evidence on record to establish that
the respondents-accused were informed of their right to have their
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


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under Section 50 of the NDPS Act was duly complied with. The
concerned authority was required to inform the respondents-accused
of their legal right and, if they so desired, to produce them before the
nearest Gazetted Officer or Magistrate, as observed by the Hon'ble
Apex Court in the decisions referred to hereinabove.



24.      On perusal of the impugned judgment and order, it is evident
that the prosecution has miserably failed to establish compliance with
the mandatory provisions of Sections 50 and 57 of the NDPS Act as
aforesaid. As observed by the trial Court in paragraph 16, the Court
has recorded cogent reasons for disbelieving the case of the
prosecution. The Trial Court has also carefully considered and
discussed the evidence adduced by the prosecution, and upon
appreciation of the evidence of all the witnesses, found that the
prosecution had failed to establish its case against the present
respondent beyond reasonable doubt. Therefore, in the facts and
circumstances of the case, the Trial Court has rightly passed the
impugned judgment and order of acquittal. In view of the above, I am
of the opinion that the trial Court has not committed any error of facts
and law in passing the impugned judgment and order and I do not find
any illegality, perversity, or infirmity in the impugned judgment and
order warranting interference by this Court.


25.      It is well settled by catena of decisions that an 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
innocence is available to him under the fundamental principle of



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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 they are 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.
42 and 43, which was subsequently re-affirmed by the Hon’ble Apex


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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 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.



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           (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
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



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   accused from the charges levelled against him. 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)

   Dolly




Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: DOLLYBEN CHETANBHAI VADUKAR(HC01392), PRIVATE SECRETARY, at High Court of Gujarat on 24/08/2026 16:24:03


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