STATE OF GUJARAT, THRO'BHARATKUMAR HARIPRASAD TRIVEDI, DRUGversusSUMANTLAL JAYANTILAL PATEL

     R/CR.A/2534/2009                                 JUDGMENT DATED: 12/08/2026




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 2534 of 2009


FOR APPROVAL AND SIGNATURE:


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

             Approved for Reporting                  Yes          No

==========================================================
     STATE OF GUJARAT, THRO'BHARATKUMAR HARIPRASAD TRIVEDI,
                              DRUG
                              Versus
                   SUMANTLAL JAYANTILAL PATEL
==========================================================
Appearance:
MS JYOTI BHATT ADDITIONAL PUBLIC PROSECUTOR for the Appellant(s)
No. 1
MR MANISH J PATEL(2131) for the Opponent(s)/Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                                 Date : 12/08/2026

                                   JUDGMENT


1.      The present appeal is led by the appellant – State of Gujarat
under 378(4) of the Criminal Procedure Code, 1973 (hereinafter
referred to as ‘CrPC’ for short) against the judgment and order dated
10.06.2009 passed by the learned Chief Judicial Magistrate, Patan
(hereinafter be referred to as “the Trial Court).

2.      The appellant had led the complaint against the respondent-
accused under Sections 18(C) and 27 of the Drugs and Cosmetics Act,
1940. During the course of investigation and after considering the
documents, the police found su3cient material and led charge-sheet
in the trial Court. The trial Court recorded the plea and as the accused

                                     Page 1 of 6
     R/CR.A/2534/2009                                JUDGMENT DATED: 12/08/2026




pleaded not guilty to the o4ence, therefore, as the o4ence was triable
by the trial Court, the trial was proceeded and the impugned
judgment and order was delivered by the trial Court on 10.06.2009
acquitting the respondent-accused from the charges levelled against
him.

3.      Heard learned counsel appearing for the respective parties.

4.      This matter is required to be transferred in view of the decision
of the High Court of Chhattisgarh rendered in the case of State of
Chhattisgarh, Through Its Station House O3cer Vs. Mohanlal Bagde,
reported in [2019] SCC OnLine Chh 102 wherein, the Court has
referred the earlier decision of the Hon’ble Supreme Court rendered in
case of of Subhash Chand vs State (Delhi Administration), reported in
(2013) 2 SCC 17, wherein, the Hon’ble Supreme Court has observed
and held in para-18 as under :


          “18. If we analyse Section 378(1)(a) & (b), it is clear that
          the State Government cannot direct the Public Prosecutor
          to #le an appeal against an order of acquittal passed by a
          Magistrate in respect of a cognizable and non- bailable
          o*ence because of the categorical bar created by Section
          378(1)(b). Such appeals, that is appeals against orders of
          acquittal passed by a Magistrate in respect of a cognizable
          and non-bailable o*ence can only be #led in the Sessions
          Court at the instance of the Public Prosecutor as directed
          by the District Magistrate. Section 378(1)(b) uses the
          words "in any case" but leaves out orders of acquittal
          passed by a Magistrate in respect of a cognizable and non-
          bailable o*ence from the control of the State Government.
          Therefore, in all other cases where orders of acquittal are
          passed appeals can be #led by the Public Prosecutor as
          directed by the State Government to the High Court."


5.      It would also be appropriate to refer to the decision of the High
Court of Punjab & Haryana rendered in case of Mohanlal Vs. Gaurav


                                    Page 2 of 6
     R/CR.A/2534/2009                             JUDGMENT DATED: 12/08/2026




Kumar and Anr., reported in 2025 PHHC 162308, wherein the Court
has observed and held in para-3 as under :

          “3. The Hon’ble Supreme Court in M/s. Celestium
          Financial vs. A.Gnanasekaran Etc., 2025(3) RCR
          (Criminal) 208, after considerable discussion and
          comparative interpretation of Sections 372 and 378(4)
          of Cr.P.C., concluded that the victim has a right to #le
          an appeal under Section 372 of Cr.P.C. before the
          Court of Sessions.”

6.      In the case of Celestium Financial Vs. A. Gyanasekaran (supra),
the Hon’ble Supreme Court has held and observed in para – 7.12 as
under:-

          “7.12       The reasons for the above distinction are
          not far to see and can be elaborated as follows:

          Firstly, the victim of a crime must have an absolute
          right to prefer an appeal which cannot be
          circumscribed by any condition precedent. In the
          instant case, a victim under Section 138 of the Act,
          i.e., a payee or the holder of a cheque is a person who
          has su*ered the impact of the o*ence committed by a
          person who is charged of the o*ence, namely, the
          accused, whose cheque has been dishonoured.

          Secondly, the right of a victim of a crime must be
          placed on par with the right of an accused who has
          su*ered a conviction, who, as a matter of right can
          prefer an appeal under Section 374 of the CrPC. A
          person convicted of a crime has the right to prefer an
          appeal under Section 374 as a matter of right and not
          being subjected to any conditions. Similarly, a victim
          of a crime, whatever be the nature of the crime,
          unconditionally must have a right to prefer an appeal.

          Thirdly, it is for this reason that the Parliament
          thought it #t to insert the proviso to sub-section 372
          without mandating any condition precedent to be



                                  Page 3 of 6
     R/CR.A/2534/2009                              JUDGMENT DATED: 12/08/2026




          ful#lled by the victim of an o*ence, which expression
          also includes the legal representatives of a deceased
          victim who can prefer an appeal. On the contrary, as
          against an order of acquittal, the State, through the
          Public Prosecutor can prefer an appeal even if the
          complainant does not prefer such an appeal, though of
          course such an appeal is with the leave of the court.
          However, it is not always necessary for the State or a
          complainant to prefer an appeal. But when it comes to
          a victim’s right to prefer an appeal, the insistence on
          seeking special leave to appeal from the High Court
          under Section 378(4) of the CrPC would be contrary to
          what has been intended by the Parliament by insertion
          of the proviso to Section 372 of the CrPC.

          Fourthly, the Parliament has not amended Section 378
          to circumscribe the victim’s right to prefer an appeal
          just as it has with regard to a complainant or the State
          #ling an appeal. On the other hand, the Parliament
          has inserted the proviso to Section 372 so as to
          envisage a superior right for the victim of an o*ence
          to prefer an appeal on the grounds mentioned therein
          as compared to a complainant.

          Fifthly, the involvement of the State in respect of an
          o*ence under Section 138 of the Act is conspicuous by
          its absence. This is because the complaint #led under
          that provision is in the nature of a private complaint as
          per Section 200 of the CrPC and Section 143 of the Act
          by an express intention incorporates the provisions of
          the CrPC in the matter of trial of such a deemed
          o*ence tried as a criminal o*ence. Therefore, the
          complainant, who is the victim of a dishonour of
          cheque must be construed to be victim in terms of the
          proviso to Section 372 read with the de#nition of
          victim under Section 2(wa) of the CrPC.”

7.      In the decision in case of M/s. Everest Automobiles Vs. M/s.
Rajit Enterprises dated 12.02.2026 passed in Special Leave to Appeal
No.12350 of 2024 the Hon’ble Apex Court observed as under:-

          “Reliance is placed by the learned counsel for the


                                   Page 4 of 6
     R/CR.A/2534/2009                            JUDGMENT DATED: 12/08/2026




          petitioner on the recent judgment of this Court in
          “Celestium Financial vs. A. Gnanasekaran1”. By way of
          the said judgment, a co-ordinate Bench of this Court
          held that a complainant in a case arising under
          Section 138 of the Negotiable Instruments Act, 1881,
          is a ‘victim’ who would be entitled to #le an appeal
          under the proviso to Section 372 of the Code of
          Criminal Procedure, 19732. It was further held that
          such appeal could be #led against an order of
          acquittal under the proviso to Section 372 of the Code
          without seeking special leave to appeal under Section
          378(4) of the Code.

          However, this judgment did not take into account the
          earlier decisions of this Court in Satya Pal Singh vs.
          State of M.P. and Subhash Chand vs. State (Delhi
          Administration), which have a bearing on both the
          aspects that were considered in the aforestated
          judgment, as they held to the contrary.”

8.      Learned Additional Public Prosecutor has pointed out that the
matter in the case of Celestium Financial Vs. A. Gyanasekaran (supra)
is now pending at large before the Hon’ble Supreme Court in case of
M/s. Everest Automobiles Vs. M/s. Ranjit Enterprises in Special Leave
to Appeal (Crl.) No. 12350/2024 wherein the Hon’ble Supreme Court
has observed that it is desirable that a larger Bench gives an
authoritative pronouncement on this issue as it has far-reaching
consequences.

9.      In view of the said submissions and the decisions of di4erent
Courts as well as the Hon’ble Supreme Court as aforesaid, this appeal
is disposed of with a direction to the Registry to transfer the appeal to
the concerned Sessions Court. After it is transferred to the concerned
Sessions Court, it has to be treated as an Appeal under the proviso
under Section 372 of the Code / Section 413 of BNSS and numbered
accordingly and issue notice to the parties. The Registry is directed to


                                 Page 5 of 6
      R/CR.A/2534/2009                                                  JUDGMENT DATED: 12/08/2026




transfer the entire record of the case, including the certi ed copies of
the order impugned and record & proceedings, if lying with this Court,
to the concerned lower Appellate Court, forthwith.

10.       Considering that the matter has been pending for considerable
time, the learned lower Appellate Court is required to make
endeavour to dispose of the matter as expeditiously as possible. It is
clari ed that this Court has not gone into the merits of the matter at
this stage.

                                                               (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 13/08/2026 18:32:20




                                                Page 6 of 6