High Court of Gujarat
STATE OF GUJARATversusASHRAFKHAN AJABKHAN PATHAN
- Disposal
- 39-RULE DISCHARGED/DISMISSED @ FH
- Bench
- SANJEEV THAKER
Holding
The appellate court upheld the trial court's acquittal, finding no infirmity in its findings and no patent perversity in its judgment.
Summary
The State of Gujarat appealed the acquittal of Ashrafkhan Ajabkhan Pathan, who was alleged to have illegally entered the visitors' room of Sabarmati Central Jail and been found in possession of 33.4 grams of charas. The trial court, after hearing 18 prosecution witnesses and examining documentary evidence, held that the prosecution failed to prove the charge beyond reasonable doubt, noting the absence of a visitor register entry, lack of direct evidence, and contradictions in witness testimonies. The State argued that the trial court erred in discounting the circumstantial evidence, while the accused’s counsel supported the acquittal. The High Court re‑appraised the evidence, affirmed the trial court’s reasoning, and emphasized that appellate interference in an acquittal is permissible only on a finding of patent perversity or mis‑appreciation of material evidence. Consequently, the appeal was dismissed and the acquittal upheld.
Issues considered
- The prosecution proved the possession of charas by the accused beyond reasonable doubt.
- Whether the trial court erred in acquitting the accused on the basis of lack of direct evidence and contradictions.
- Whether the appellate court may disturb an acquittal absent patent perversity under Section 378 of the CrPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 378
- Indian Penal Code, 1860s. 188
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 21, s. 29, s. 8(c)
Subjects
appeal against acquittalNDPS Actcontraband possessionreasonable doubtevidence appraisalCrPC Section 378high court judgmentjail visitor room
Judgment
R/CR.A/456/2010 JUDGMENT DATED: 06/02/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 456 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
ASHRAFKHAN AJABKHAN PATHAN
==========================================================
Appearance:
MS SHRUTI PATHAK, APP for the Appellant - State
MR MA SAIYAD(5598) for the Opponent(s)/Respondent(s) No. 1
MS BENAZIR M HAKIM(5166) for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 06/02/2026
ORAL JUDGMENT
1. Feeling aggrieved by and dissatisfied with the
judgment and order of acquittal dated 25.11.2009, passed by
the learned Additional Sessions Judge, Court No.16,
Ahmedabad City in Sessions Case No.294 of 2008, punishable
under Section 8(c), 21 and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short `NDPS’ Act),
Sections 42, 43 and 45(12) of the Jail Act and Section 188 of
the Indian Penal Code, the appellant – State of Gujarat has
preferred this appeal under Section 378 of the Code of
Criminal Procedure, 1973 (for short, “the Code”).
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2. The prosecution case as unfolded during the trial
before the Sessions Court is that on 03.07.2008 before 16:40
hours, though accused – respondent was not given any
appointment for visiting visitors, inspite of that, he illegally
entered into the visiting room at Central Jail, Sabarmati and
obtained muddamal contraband - Charas to the extent of
33.400 gms. From his colleague; and that search of the
accused was carried out and during the search, the accused
was found in conscious possession of said contraband –
Charas; and thereby committed an offence, as alleged.
Therefore, the case was registered against the
respondents/accused.
3. After investigation, sufficient prima facie evidence
was found against the accused person/s and therefore charge-
sheet was filed in the competent criminal Court. Since the
offence alleged against the accused person/s was exclusively
triable by the Court of Sessions, the learned Magistrate
committed the case to the Sessions Court, where it came to
be registered as Sessions Case No.294 of 2008. The charge
was framed against the accused person/s. The accused
pleaded not guilty and came to be tried.
4. In order to bring home the charge, the prosecution
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has examined 18 witnesses and also produced 12
documentary evidence before the trial Court, which are
described in the impugned judgment.
5. After hearing both the parties and after analysis
of evidence adduced by the prosecution, the learned trial
Judge acquitted the accused for the offences for which the
charge was framed, by holding that the prosecution has failed
to prove the case beyond reasonable doubt.
6. Learned APP for the appellant – State has
pointed out the facts of the case and having taken this Court
through both, oral and documentary evidence, recorded before
the learned trial Court, would submit that the learned trial
Court has failed to appreciate the evidence in true sense and
perspective; and that the trial Court has committed error in
acquitting the accused. It is submitted that the learned trial
Court ought not to have given much emphasis to the
contradictions and/or omissions appearing in the evidence and
ought to have given weightage to the dots that connect the
accused with the offence in question. It is submitted that
the learned trial Court has erroneously come to the
conclusion that the prosecution has failed to prove its case. It
is also submitted that the learned Judge ought to have seen
that the evidence produced on record is reliable and
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believable and it was proved beyond reasonable doubt that
the accused had committed an offence in question. It is,
therefore, submitted that this Court may allow this appeal by
appreciating the evidence led before the learned trial Court.
7. As against that, learned advocate for the
respondent/s would support the impugned judgment passed by
the learned trial Court and has submitted that the learned
trial Court has not committed any error in acquitting the
accused. The trial Court has taken possible view as the
prosecution has failed to prove its case beyond reasonable
doubt. Therefore, it is prayed to dismiss the present appeal
by confirming the impugned judgment and order passed by
the learned trial Court.
8. In the aforesaid background, considering the oral
as well as documentary evidence on record, independently and
dispassionately and considering the impugned judgment and
order of the trial Court, the following aspects weighed with
the Court :
8.1 As per the case of the prosecution, the accused
was an under-trial prisoner and when he was in the jail
premises, the contraband article was found in his possession.
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8.2 The prosecution has examined P.W.1 - Pravinbhai
Ramanbhai Damor, vide Exh.6, who is the panch witness of
the panchnama which is produced at Exh.7 and have
examined Bachubhai Somabhai Bhagora as P.W.2, vide
Exh.11. In his deposition, he has stated that he is not aware
from whom the contraband was found.
The prosecution has examined Abdulgafur Ilahibax
Shaikh as P.W.3, vide Exh.12, who was the Jailor at the
time of offence and according to his deposition, he has stated
that he had instructed Hawaldar – Bhikhankhan Kadukhan
Bahelim to take search of the accused and it is at that point
of time, the accused had said that he had come to the
visitor’s room as he had a visitor.
Thereafter, the prosecution has examined as P.W.4
– Jayendrasinh Mangalsinh Jadeja, who is a Senior Jailor,
vide Exh.14.
The prosecution has examined Bhikhankhan
Kadukhan Bahelim as P.W.5, vide Exh.15, who was the
officer who was instructed by the Jailor – Abdulgafur
Ilahibax Shaikh to take search of the accused and in his
search, he found a plastic bag in the fist of the accused.
The supervisor of the jail – Bijalbhai Shamjibhai
Solanki has been examined as P.W.6, vide Exh.16 and the
said witness – Bijalbhai, in his deposition, has stated that he
has noted in his register; and that on the date of the
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offence, the accused had come to him to take leave to go and
consult a doctor for his treatment and the said fact was
noted in the register. He has also stated that his duty is
from 6:00 a.m. to 8:30 a.m. and from 12:30 p.m. to 16:30
p.m. The incident has taken place at 16:40 hours. In his
cross-examination, he has stated that in the evening, the
accused was not given permission to go outside from the
‘chhota chakkar’ barrack.
The person who has weighed the contraband –
Laxmichand Babulal Soni has been examined as P.W.7, vide
Exh.17.
Vide Exh.19, the Police Constable – Narendrasinh
Sadhusinh Rana has been examined as P.W.8. He was at the
Sabarmati Police Station and he was given the duty to hand
over the sample to the Forensic Science Laboratory.
The crime writer – Vajubhai Girdharbhai
Kharchariya, Head Constable, has been examined as P.W.9,
vide Exh.20 and he gave the sample to P.W.8 –
Narendrasinh to forward to the Forensic Science Laboratory.
The PSO at Sabarmati Police Station – Bhupatdan
Bhikhudan Gadhvi, who has taken the vardhi, has been
examined as P.W.10, vide Exh.20. The copy of the vardhi has
been produced at Exh.23 and station diary at Exh.24.
The another PSO at Sabarmati Police Station viz.,
Kishorchandra Navnitlal Pandya has been examined as
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P.W.11, vide Exh.26.
The writer at Sabarmati Police Station viz.,
Yogendrasingh Yashvantsinh Chauhan has been examined as
P.W.12, vide Exh.28.
The Wireless Operator viz., Shartubhai
Dhatariyabhai Vasava, when the vardhi was sent, has been
examined as P.W.13, vide Exh.29.
The PSI at Sabarmati Police Station –
Gambhirsinh Juthaji Jadeja has been examined as P.W.14,
vide Exh.30.
The officer of the FSL viz., Amrutlal Vashrambhai
Hingalajiya, who has taken the sample, has been examined
as P.W.15, vide Exh.32.
The other officer of the FSL viz., Hemantkumar
Bhalchandra Bhatt has been examined as P.W.16, vide
Exh.35.
The reports of the FSL, which are produced vide
Exhs.36, 37 and 38, have been proved by the evidence of
P.W.16 – Hemantkumar Bhalchandra Bhatt (P.W.16).
8.3 The Investigating Officer – Kirtikumar Mulshankar
Joshi has been examined as P.W.17, vide Exh.40. He has
stated that it has come up on 03.07.2008 i.e. the date of
offence as per his record, there is no note that anybody has
come to meet the accused. According to him, if anybody
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comes to meet the accused at the jail, there is a register
and the said register shows that nobody had come to meet
the accused. Moreover, he has also stated that he has not
taken the print of CCTV which was available in the visitors’
room.
8.4 The prosecution has also examined P.W.18 –
Dr.Arvindkumar Chandreshwarprasad Varma, vide Exh.45,
who has treated the accused at the hospital. He has stated
that the accused had come for his treatment on 03.07.2008
and as per his statement, when he had examined the
accused, he did not find any objectionable item with the
accused.
8.5 The prosecution has also produced the jail register
for the date 03.07.2008, vide Exh.43. The said jail register
gives details of all the visitors, who had come to meet the
prisoners and the said jail register does not give the name of
the accused. Therefore, the prosecution has failed to prove
that anyone had come to meet the prisoner on the said date.
8.6 If the evidence of the Jailor - Abdulgafur Ilahibax
Shaikh (P.W.3), who has been examined vide Exh.12, is taken
into consideration, he has categorically stated that the police
officer is present inside the visitor’s room; and that the
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camera have been installed in the said room, where the
photograph of the accused and the visitor can easily be
taken. He has also stated that if the accused is part of any
gang and if he is an accused of the offence under the POTA
or if he is a special prisoner, then the discussion of the
accused with the said visitor is required to be noted by an
officer of the police department. He has also stated in his
cross-examination that only those prisoners, who have visitors,
are allowed to enter the said visiting room and the name
and details of the person, who comes to visit the prisoner,
have to be filled up in a form; and that if any lawyer
comes to meet any prisoner, there is a separate register for
the same.
8.7 If the entire case of the prosecution is taken into
consideration, it transpires that if the prisoner has to leave
his barrack and reach at the visiting room, it is
geographically difficult for him to reach at the same directly.
The fact remains that from the jail register, it has been
established that there was no visitor who had come to meet
the accused and even according to the case of the
prosecution, it would be difficult for the accused to hide and
come to the visiting room directly. The fact also remains that
only those persons, who had visitors, were permitted inside
the visiting room and it is the case of the prosecution that
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the accused was searched when he was about to leave the
visiting room. Therefore, the prosecution has not been able to
prove that the accused was inside the visiting room; and that
the contraband was found in his fist during the said search.
The fact also remains that the accused had taken permission
to go for his medical treatment and even according to the
prosecution’s witness, it was difficult for the accused to reach
the visiting room in the guise of going for his medical
treatment.
8.8 If the evidence of P.W.14 - Gambhisingh Juthaji
Jadeja, who has been examined vide Exh.30, is taken into
consideration, he has stated that P.W.3 – Abdulgafur Ilahibax
Shaikh had given the complaint in his presence, but has also
admitted that it has not happened that before reaching
Sabarmati Central Jail, the complaint was given. Therefore,
the Sessions Court has also taken into consideration that at
what time, and in whose presence, the said complaint is
given, is also not proved by the prosecution. The constable –
Bhikhankhan Kadukhan Bahelim, who had taken the search
of the accused, has been examined vide Exh.15 and in his
deposition, he has stated that he has not seen the accused
going inside the said visitor room. Though the said FSL
report has not been challenged by the accused, but the fact
remains that the prosecution has not been able to prove that
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how the said contraband was found in the fist of the
accused.
9. Further, learned APP is not in a position to show
any evidence to take a contrary view in the matter or that
the approach of the Court below is vitiated by some manifest
illegality or that the decision is perverse or that the Court
below has ignored the material evidence on record. In above
view of the matter, I am of the considered opinion that the
Court below was completely justified in passing impugned
judgment and order.
10. Considering the impugned judgment, the trial
Court has recorded that there was no direct evidence
connecting the accused with the incident and there are
contradictions in the depositions of the prosecution witnesses.
In absence of the direct evidence, it cannot be proved that
the accused are involved in the offence. Further, the motive
of the accused behind the incident is not established. The
trial Court has rightly considered all the evidence on record
and passed the impugned judgment. The trial Court has
rightly evaluated the facts and the evidence on record.
11. It is also a settled legal position that in acquittal
appeal, the appellate court is not required to re-write the
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judgment or to give fresh reasoning, when the reasons
assigned by the Court below are found to be just and proper.
Such principle is down by the Apex Court in the case of
State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC
1417 wherein it is held as under:
“… This court has observed in Girija
Nandini Devi V. Bigendra Nandini
Chaudhary (1967)1 SCR 93: (AIR 1967
SC 1124) that it is not the duty of the
appellate court when it agrees with the
view of the trial court on the evidence
to repeat the narration of the evidence
or to reiterate the reasons given by the
trial court expression of general
agreement with the reasons given by the
Court the decision of which is under
appeal, will ordinarily suffice.”
12. Thus, in case the appellate court agrees with the
reasons and the opinion given by the lower court, then the
discussion of evidence at length is not necessary.
13. In the case of Ram Kumar v. State of Haryana,
reported in AIR 1995 SC 280, Supreme Court has held as
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under:
“The powers of the High Court in an
appeal from order of acquittal to
reassess the evidence and reach its own
conclusions under Sections 378 and 379,
Cr.P.C. are as extensive as in any
appeal against the order of conviction.
But as a rule of prudence, it is
desirable that the High Court should
give proper weight and consideration to
the view of the Trial Court with regard
to the credibility of the witness, the
presumption of innocence in favour of
the accused, the right of the accused to
the benefit of any doubt and the
slowness of appellate Court in justifying
a finding of fact arrived at by a Judge
who had the advantage of seeing the
witness. It is settled law that if the
main grounds on which the lower Court
has based its order acquitting the
accused are reasonable and plausible,
and the same cannot entirely and
effectively be dislodged or demolished,
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the High Court should not disturb the
order of acquittal."
14. As observed by the Hon'ble Supreme Court in the
case of Rajesh Singh & Others vs. State of Uttar Pradesh
reported in (2011) 11 SCC 444 and in the case of
Bhaiyamiyan Alias Jardar Khan and Another vs. State of
Madhya Pradesh reported in (2011) 6 SCC 394, while dealing
with the judgment of acquittal, unless reasoning by the trial
Court is found to be perverse, the acquittal cannot be upset.
It is further observed that High Court's interference in such
appeal in somewhat circumscribed and if the view taken by
the trial Court is possible on the evidence, the High Court
should stay its hands and not interfere in the matter in the
belief that if it had been the trial Court, it might have
taken a different view.
15. In the case of Chandrappa v. State of Karnataka,
reported in (2007) 4 SCC 415, the Hon’ble Apex Court has
observed as under:
“42. From the above decisions, in our
considered view, the following general
principles regarding powers of the
appellate court while dealing with an
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appeal against an order of acquittal
emerge:
(1) An appellate court has full power to
review, reappreciate and reconsider the
evidence upon which the order of
acquittal is founded.
(2) The Criminal Procedure Code, 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 emphasise 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
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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.”
16. The Hon’ble Apex Court, in a recent decision, in
the case of Constable 907 Surendra Singh and Another V/s
State of Uttarakhand reported in (2025) 5 SCC 433, has held
in paragraph 24 as under:
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“24. It could thus be seen that it is a
settled legal position that the
interference with the finding of acquittal
recorded by the learned trial Judge
would be warranted by the High Court
only if the judgment of acquittal suffers
from patent perversity; that the same is
based on a misreading/omission to
consider material evidence on record; and
that no two reasonable views are
possible and only the view consistent
with the guilt of the accused is possible
from the evidence available on record.”
17. Considering the aforesaid facts and circumstances
of the case and law laid down by the Hon'ble Supreme Court
while considering the scope of appeal under Section 378 of
the Code of Criminal Procedure, 1973 no case is made out to
interfere with the impugned judgment and order of acquittal.
18. In view of above facts and circumstances of the
case, on my careful re-appreciation of the entire evidence, I
found that there is no infirmity or irregularity in the
findings of fact recorded by learned trial Court and under
the circumstances, the learned trial Court has rightly
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acquitted the respondent/s - accused for the elaborate reasons
stated in the impugned judgment and I also endorse the
view/finding of the learned trial Court leading to the
acquittal.
19. In view of the above and for the reasons stated
above, the present Criminal Appeal fails to prove its case
and the same deserves to be dismissed and is dismissed,
accordingly. Record & Proceedings be remitted to the
concerned trial Court forthwith.
(SANJEEV J.THAKER,J)
M.H. DAVE
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: MAHESHKUMAR HASMUKHLAL DAVE(HC00193), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 06/02/2026 15:55:18
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