STATE OF GUJARATversusMERUBHAI MOHANBHAI THAKKAR

     R/CR.A/1970/2012                                 JUDGMENT DATED: 20/08/2026




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1970 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
==========================================================

             Approved for Reporting                  Yes          No

==========================================================
                              STATE OF GUJARAT
                                    Versus
                         MERUBHAI MOHANBHAI THAKKAR
==========================================================
Appearance:
MS JYOTI BHATT ADDITIONAL PUBLIC PROSECUTOR for the Appellant(s)
No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MASUDIQBAL H RATHOD(7919) for the Opponent(s)/Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                                 Date : 20/08/2026

                                   JUDGMENT


1.      The appellant - State of Gujarat has preferred this appeal under
Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the
judgment and order of acquittal dated 18.09.2012 passed by the
learned 6th (Ad-hoc) Additional Sessions Judge, Mirzapur, Ahmedabad
(hereinafter be referred to as “the Trial Court”) in Sessions (NDPS)
Case No.01 of 2010, whereby the Trial Court has acquitted the
respondent-accused from the charges under Sections 8 and 20(b)(2)
of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter be referred to as the “NDPS Act”).




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2.       The brief facts of the prosecution case is that on 06.02.2010,
the complainant i.e Police Sub Inspector Shri G.D. Palsana, Bavla
Police Station, received a secret information that one Merubhai
Mohanbhai Thakkar along with his son Jayendra Merubhai Thakkar,
who were residing at Ramnagar Paru, situated near Bavla Town, were
having possession of ganja and illegally selling it. That, as per the
information, the complainant called two panch witnesses through
Police Constable Baldevbhai Jivabhai, one Babubhai Chhotabhai along
with his weight machine and other raiding party and informed about
the raid. Thereafter, the complainant, panch witnesses and raiding
party proceeded for raid and went to the residence of accused, where
the son of the accused was present. That, the complainant gave his
identity and searched the premises and in one suitcase, total 2.780
kilogram ganja was found without pass and permit in the illegal
possession of the accused, which was kept in his house. Thereby, the
accused committed an offence punishable under Sections 8 and 20
(b) (2) of the NDPS Act. Hence, a complaint was lodged before the
police station for the aforesaid offences.


2.1      After completion of the investigation, a chargesheet was filed
against the accused. Thereafter, charge was framed against him for
the offences punishable under Sections 8 and 20(b)(2) of the NDPS
Act. The accused pleaded not guilty to the charges and claimed to be
tried. The prosecution, therefore, led 14 oral as well as 18
documentary evidences in support of its case. Upon completion of the
trial, the Trial Court, by judgment and order dated 18.09.2012
acquitted the accused of the offences with which he was charged.


2.2      The State of Gujarat, being aggrieved and dissatisfied with the


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      R/CR.A/1970/2012                                 JUDGMENT DATED: 20/08/2026




aforesaid judgment and order of acquittal, has preferred the present
Appeal.


3.       Heard Ms. Jyoti Bhatt, learned Additional Public Prosecutor for
the appellant – State of Gujarat and Mr.Masudiqbal H Rathod, learned
counsel for the respondent – accused at length.


4.       Ms. Bhatt, learned Additional Public Prosecutor appearing for
the appellant – State of Gujarat has submitted the same facts which
are narrated in the memo of appeal and has also submitted that the
prosecution          has   examined     14     witnesses   and    produced          18
documentary evidences, 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.Bhatt, 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. She has submitted that the Trial
Court erred in holding that the prosecution failed to prove that on
06.02.2010 at about 13:00 hours, 2.780 kilograms of ganja, valued at
Rs.7750/-, was seized from the illegal possession of the accused at his
house. The said finding is contrary to the evidence on record.


4.1      Learned APP submitted that the Trial Court has erred in holding
that the accused could not be convicted for the offences punishable
under Sections 8 and 20(b)(2) of the NDPS Act, despite sufficient
evidence establishing his conscious and illegal possession of the


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      R/CR.A/1970/2012                                       JUDGMENT DATED: 20/08/2026




contraband. She has submitted that the complainant PW-12,
Gautambhai Devrajbhai Palsana, Police Sub Inspector, Bavla Police
Station, examined at Exh:29 and his complaint produced at Exh: 33.
His evidence establishes that, after receiving secret information, the
necessary procedure was followed and a raid was conducted, during
which 2.780 kilograms of ganja valued at Rs.7750/- was seized from
the accused. His evidence is duly corroborated by the other oral and
documentary evidence on record. She has submitted that PW-6
Babubhai Chhotabhai Soni at Exh: 20, PW:7 Bharatsinh Amarsinh
Chauhan at Exh:22, PW:8 Himatsinh Sardarsinh at Exh: 24, Pw-9
Kanaiyalal Dhulabhai Vagheshwari at Exh: 25, PW-10 Somabhai
Gebabhai at Exh. 26, and PW:11 Abdulrajak Abdulkadar at Exh:27, all
of these witnesses have supported the case of the prosecution. There
was no valid reason for the Trial Court to discard their evidence.


4.2      Learned APP has submitted that the trial Court has erred by not
appreciating             the   evidences    such      as   Panchnama      of   recovery
muddamal at Exh: 10, Sanction letter of raid at Exh:11, Panchnama of
scene of offence at Exh:16, Arrest Panchnama of accused at Exh: 19,
FSL report at Exh: 40 and FSL Botanical Report at Exh:41. She has
submitted that the trial Court ought to have appreciated that it was
proved from the F.S.L report and other materials available on the
record of the case that the accused committed offence under Section
8 and 20 (b) (2) of the N.D.P.S. Act and the complainant with his staff
recovered the illegal substances from the accused.


4.3      Learned APP submits that the necessary procedure as provided
under Section 42 (1) and 42 (2) of the NDPS Act has been fully
complied with by the authorities. It has proved that the muddamal


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      R/CR.A/1970/2012                            JUDGMENT DATED: 20/08/2026




article was in the possession of the accused person. The Trial Court,
without properly considering the material evidence, committed a
grave error in discarding the prosecution case.



4.4      In view of the cogent and reliable oral and documentary
evidence, the learned APP submitted that the Trial Court ought not to
have acquitted the accused. The findings recorded in the impugned
judgment are contrary to the evidence on record and suffer from
serious errors of appreciation. It was, therefore, submitted that the
judgment and order of acquittal deserves to be quashed and set aside
by this Hon’ble Court.

5.       Per contra, Mr.Rathod, learned counsel for the respondent –
accused has supported the impugned judgment and order and has
submitted that the trial Court has not committed any error of law and
fact in acquitting the accused from the charges levelled against him.
He has submitted that the ingredients of the offence alleged against
the accused are not proved beyond reasonable doubt and, therefore,
the trial Court has rightly acquitted the accused as the complainant
has failed to prove the charge levelled against the accused. He has
also submitted that there is no iota of evidence to connect the
accused with the alleged crime in question. He has prayed to confirm
the impugned judgment and dismiss the present appeal.


6.       I have heard the learned counsel for the respective parties and
perused the materials on record. On perusal of the impugned
judgment and order of acquittal passed by the trial Court, the
questions that arise for determination are as under:-




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(1)        whether the trial Court has rightly 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 and perversity in the
impugned          judgment and order of acquittal.


7.       On perusal of the records, it appears that the allegation against
the respondent was that, on 06.02.2010, the complainant received
secret information that the present respondent was engaged in the
business of selling contraband articles, namely, ganja, which was
allegedly kept at his residence. Pursuant to the said information, the
complainant, along with other police personnel, visited the house of
the respondent. It appears that since the respondent was not present
at the house, his minor son, namely, Jayendra Mehrubhai Thakkar,
was present there and in his presence, the search of the premises
was carried out, during which 2.780 kilograms of ganja was allegedly
found and seized. It is the case of the prosecution that the signature
of the minor son of the respondent was obtained on the relevant
document, which was produced on record at Exhibit 11. The
investigation was carried out by PW-12, Gautambhai Devrajbhai
Palsana, whose deposition is at Exhibit 29. PW-12 deposed before the
trial Court that, on the basis of the secret information received
through his informant, he had searched the premises of the accused.
However, it appears that the secret information received by PW-12
was not reduced into writing and it was not produced before the trial
Court. PW-12 has further admitted in his cross examination that at the
time of conducting the search, he did not have any search warrant
issued by his superior officer as provided under section 41 of the


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     R/CR.A/1970/2012                                  JUDGMENT DATED: 20/08/2026




NDPS Act. The warrant was received subsequently. Thus, it appears
that he has searched the premises and seized the goods in
anticipation of its issuance.


8.      If the evidence of PW-7, Bharatsinh Amarsinh Chauhan, who
was a member of the raiding party accompanying the complainant-
PW-12, is perused, it emerges that they proceeded to the place along
with witness Babubhai Chotabhai Soni and an electric weighing
machine. It appears that in his cross-examination, PW-7 admitted that
no investigation was carried out to ascertain whether the premises
was owned or occupied by the respondent, nor was any documentary
evidence collected in that regard and only a copy of the ration card
was obtained. PW-8, Himatsinh Sardarsinh, was also a member of the
raiding party and from his deposition, an interesting information
emerges that, PW-8 had stated that when PW-12 informed him about
the information received, no one was present at the police station.
However, the evidence of PW-7 shows that PW-7 was also present at
the police station and that, in his presence, the panch witnesses and
the goldsmith for weighing the contraband article were called. It
appears that none of the independent witnesses have supported the
case of the prosecution. Even panch witnesses have not supported
the case of the prosecution and only the police witnesses have
deposed before the trial Court to prove the charge.


9.      On perusal of the deposition of PW-6, Babubhai Chhotabhai Soni
being      goldsmith,   it   appears   that      he   had   accompanied         the
Investigating Officer and the members of the raiding party to the
place of the respondent. He stated that the certificate was collected
by the police constable-PW8 after about two days. However, the date


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      R/CR.A/1970/2012                            JUDGMENT DATED: 20/08/2026




mentioned on the said certificate was 06.02.2010, i.e. the very date
on which the search was conducted. Therefore, this circumstance
creates serious doubts in the case of prosecution. Another relevant
aspect of the matter is that, though the prosecution claims that the
search was conducted pursuant to prior secret information, such
information was not reduced into writing. The prosecution further
claims that the signature of the minor son, Jayendra Thakkar, was
obtained at the time of the search, however, on perusal of the
document at Exhibit 11, it appears that the document was not signed
by the minor, Jayendra Thakkar. In any event, even assuming that the
minor had signed the document, such consent cannot be considered
in the eyes of law, having regard to the fact that he was a minor and
was not competent to give such consent. In the absence of any
cogent evidence establishing that the present respondent was
present in the house or that he was in conscious possession of the
contraband article, the prosecution was required to establish the said
facts beyond reasonable doubt.


10.        On perusal of the impugned judgment and order and the
evidence on record, it clearly transpires that there was a serious
violation of provision of Sections 41, 42, 43 read with Sections 50 and
57 of the NDPS Act. The search and seizure was also not conducted
according to the provision of section 50 of the NDPS Act because it is
an admitted fact that the search was carried out in presence of the
minor son of the respondent and the muddamal was seized in his
presence.          Moreover, the prosecution has failed to establish the
ownership of the premises in question by the respondent. There are
also major contradictions with regard to the seizure of the muddamal
and the manner in which the seized contraband was kept in safe


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      R/CR.A/1970/2012                                   JUDGMENT DATED: 20/08/2026




custody. On consideration of the depositions of PW-10 and 11 at
Exhibits 26 and 27 respectively, major contradictions are found with
regard to the seizure and custody of the muddamal.


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

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

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


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R/CR.A/1970/2012                                    JUDGMENT DATED: 20/08/2026




   obligatory on the authorised officer to inform the person to be searched of
   his right.

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

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

   "The warning of the right to remain silent must be 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



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R/CR.A/1970/2012                                     JUDGMENT DATED: 20/08/2026




   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
   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.




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

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

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


12. At this stage, it is appropriate to refer 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



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      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
      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.”


13. 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


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   the State Government, if he has reason to believe from personal knowledge
   or information given by any person and taken down in writing that any
   narcotic drug, or psychotropic substance, in respect of which an offence
   punishable under Chapter IV has been committed or any document or other
   article which may furnish evidence of the commission of such offence is
   kept or concealed in any building, conveyance or enclosed place, may,
   between sunrise and sunset,--
         (a) enter into and search any such building, conveyance or place;
           (b)   in case of resistance, break open any door and remove any
   obstacle       to                such entry;
           (c)   seize such drug or substance and all materials used in the
   manufacture thereof and any other article and any animal or conveyance
   which he has reason to believe to be liable to confiscation under this Act
   and any document or other article which he has reason to believe may
   furnish evidence of the commission of any offence punishable under
   Chapter IV relating to such drug or substance; and
   (d) detain and search, and, if he thinks proper, arrest any person whom he
   has reason to believe to have committed any offence punishable under
   Chapter IV relating to such drug or substance:

   Provided that if such officer has reason to believe that a search warrant or
   authorisation cannot be obtained without affording opportunity for the
   concealment of evidence or 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



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   same. The relaxation by the legislature is evidently only to uphold the
   object of the Act. The question of mandatory application of the provision
   can be answered in the light of the said amendment. The non-compliance
   of the said provision may not vitiate the trial if it does not cause any
   prejudice to the accused.

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



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      section 42 of the Act. Whether there is adequate or substantial compliance
      with section 42 or not is a question of fact to be decided in each case. The
      above position got strengthened with the amendment to section 42 by Act
      9 of 2001”.


14. 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.


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   Jain, J.) was a member, in Karnail Singh Vs. State of Haryana13. Although in
   the said decision the Court did observe that by virtue of insertion of sub-
   sections (5) and (6), the mandate given in Baldev Singh's case (supra) is
   diluted but the Court also opined that it cannot be said that by the said
   insertion, the protection or safeguards given to the suspect have been
   taken away completely. The Court observed :-

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



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      empowered officer to take such person (suspect) either before the nearest
      gazetted officer or the Magistrate but in order to impart authenticity,
      transparency and creditworthiness to the entire proceedings, in the first
      instance, an endeavour should be to produce the suspect before the
      nearest Magistrate, who enjoys more confidence of (1974) 2 SCC 33 the
      common man compared to any other officer. It would not only add
      legitimacy to the search proceedings, it may verily strengthen the
      prosecution as well.”


15. 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


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

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


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


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


17.      The Trial Court, after considering the entire evidence on record
and the submissions advanced by the learned counsel for the
respective parties, has recorded reasons from paragraph 57 onwards
of its impugned judgment and order, and has also considered the
judgments of the Hon'ble Supreme Court as well as of other Hon’ble
High Courts dealing with the relevant provisions of the NDPS Act


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which reads as under:


[1] Mohammed Alamkhan Vs. Narcotic Control Bureau and Ors.
reported in 1997(1) CCR 190; [2] Radheshyam Vs. State of Rajasthan
reported        in       1996(4)   CCR     552;      [3]   Matlub    Vs.    State(Delhi
Administration) reported in 1997 (2) CCR 835; [4] Kamlesh Sharma
and Lokeshwarsingh Panta Vs. State of Himachal Pradesh reported in
2002(1) CCR 32; [5] Kapil Dev Vs. State of Punjab reported in
121(2005) DLT 380; [6] Darshan vs. State of Madhya Pradesh
reported in 2002(2) CCR 542; [7] State of Rajasthan Vs. Gurmail Singh
reported in AIR 2005 SC 1578; [8]                    Desh Raj Vs. State of Punjab
reported in 2005(3) RCR 334; [9] Gordhansingh Vs. State of Rajasthan
reported in 2006(2) CCR 565; [10] Mohanlal Vs. Union of India
reported in 2006(2) CCR 502; [11] Ravindran alias John Vs.
Superintendent of Customs reported in 2007(3) CCR 28; [12]
Maheshsingh Vs. State of Bihar (presently Jharkhand) reported in
2007(2) CCR 200; [13] Balvirsingh Vs. State of Orissa reported in
1996(4) CCR 21; [14]               Pradeepkumar Jain vs. State of Rajasthan
reported in 2000(1) CCR 385; [15] Ganesh Vs. State of Madhya
Pradesh reported in 1998 (1) CCR 43.


18.      In view of the aforesaid circumstances, the Trial Court recorded
a finding that the prosecution had failed to establish the basic
ingredients of the offence against the present respondent. Even the
Trial Court has observed that the prosecution has not complied with
the mandatory provisions of the NDPS Act. After considering the
evidence on record and relying upon the aforesaid decisions referred
to in the impugned judgment, the Trial Court recorded cogent reasons
and ultimately passed the impugned judgment and order of acquittal.


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

20.      It is well settled by catena of decisions that the Appellate Court
has full power to review, re-appreciate and reconsider the evidence
upon which the order of acquittal is founded. However, Appellate
Court must bear in mind that in case of acquittal there is double
presumption in favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental principle of
criminal jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent Court of law.
Secondly, the accused having secured his acquittal, the presumption
of their innocence is further reinforced, reaffirmed and strengthened
by the trial Court.

21.      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


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characterized as perverse. Merely because two views are possible, the
Court of appeal would not take the view which would upset the
judgment delivered by the Court below. However, the Appellate Court
has a power to review the evidence if it is of the view that the
conclusion arrived at by the Court below is perverse and the Court has
committed a manifest error of law and ignored the material evidence
on record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to find out whether
the accused are connected with the commission of the crime with
which he is charged.

22.      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
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.

23.      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


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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.

        (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



                                    Page 23 of 24
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           judgment of acquittal by the Trial Court giving them the benefit of doubt,
           cannot be sustained.”


24.      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.

25.      On perusal of the impugned judgment and order, it clearly
transpires that the trial Court has not committed any error of fact and
law in appreciating the evidence on record and in acquitting the
accused from the charges levelled against 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.

26.      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)
ANUSRI

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: ANUSRI VASU(HC02352), ENGLISH STENO GRADE-II\, at High Court of Gujarat on 20/08/2026 18:35:55




                                               Page 24 of 24