Gujarat High Court
The State Of Gujarat vs Topandas Nathalal on 2 June, 2025
NEUTRAL CITATION
R/CR.A/493/2008 JUDGMENT DATED: 02/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 493 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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THE STATE OF GUJARAT
Versus
TOPANDAS NATHALAL & ANR.
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Appearance:
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No.
1
ABATED for the Opponent(s)/Respondent(s) No. 2
MR BHAVESH P TRIVEDI(2731) for the Opponent(s)/Respondent(s) No. 1,2
MR RR TRIVEDI(941) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 02/06/2025
ORAL JUDGMENT
1. The present appeal is filed by State under Section 378 of the Code of Criminal Procedure thereby challenging judgment and order dated 25.04.2007 passed by the Additional Sessions Judge, 6th Fast Track Court, Gondal Camp at Jetpur (hereinafter referred to as the 'Trial Court') in Special (N.D.P.S.) Case No.95/1994 whereby the Trial Court has acquitted Accused from offences under Sections 66(B), 65(A), 81 and 116(B) of the Prohibition Act and Sections 27 and 29 of the Narcotic Substance and Psychotropic Substances Act Page 1 of 14 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Tue Jun 03 2025 Downloaded on : Tue Jun 03 21:37:27 IST 2025 NEUTRAL CITATION R/CR.A/493/2008 JUDGMENT DATED: 02/06/2025 undefined (hereinafter referred to as 'the N.D.P.S. Act').
2. The respondent No.2 herein happens to be Accused No.2 reported to be died thereby, appeal stands abetted qua Accused No.2.
3. The short facts emerging from the case read as under:-
3.1. Complainant namely Mr.K.S.Bharai happens to be Police Sub-Inspector (PSI) of Jetpur Taluka Police Station registered a complaint on 08.02.1994 contending inter alia that when he was going for an investigation in connection with FIR being CR No.33/1994 filed under Section 498(A) and 306 of the Indian Penal Code (hereinafter referred to as 'the IPC'), one Head Constable of Virpur gave an information of English liquor that Accused No.1 - Topandas Nathalal Sindhi who was dealing in English Liquor and contraband substance i.e. Marijuana (Ganja) had kept such offensive articles with him. 3.2. On receipt of the aforesaid information, after informing higher official namely Deputy Superintendent of Police Shri Garchar and Circle Inspector Shri Amrutiya at Virpur outpost, complainant kept two Panchas ready to raid the Accused at Village:Rabarika. When they saw one scooterist who was Page 2 of 14 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Tue Jun 03 2025 Downloaded on : Tue Jun 03 21:37:27 IST 2025 NEUTRAL CITATION R/CR.A/493/2008 JUDGMENT DATED: 02/06/2025 undefined being stopped and asked him about his name, he replied that he is Topandas Nathalal i.e. Accused No.1 and on searching the scooter, two English liquor bottles were found. When further asked from such bottles were procured, he replied that he got it from Parshottam Devji - Accused No.2 of Village:Jubadi. So, along with the Panchas and Accused No.1, all went to the farm of Accused No.2.
3.3. After raiding at the said farm, they could found boxes of English liquor bottles which were kept without holding any permit and on asking about the Marijuana, it was also found from the said farm. After seizing such offensive articles in presence of Panchas and completing all other procedural formalities, arrested both these Accused. So, FIR being CR.No.17/1994 came to be registered against them under Sections 66(B), 65(A), 81 and 116(B) of the Prohibition Act and Sections 27 and 29 of the N.D.P.S. Act. 3.4. After completion of investigation, a charge-sheet came to be filed against Accused and thereafter, case was committed to Trial Court. After committing the case to the Trial Court, charge was framed at Exhibit-1 against Accused for committing alleged offence as mentioned in the charge. Page 3 of 14 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Tue Jun 03 2025 Downloaded on : Tue Jun 03 21:37:27 IST 2025
NEUTRAL CITATION R/CR.A/493/2008 JUDGMENT DATED: 02/06/2025 undefined 3.5. The prosecution led following oral and documentary evidences to bring home the charge against the Accused.
Oral Evidences of Prosecutions
Sr.No. Name and Particulars Exh.No.
1 Panch witness Arjanbhai Bachubhai 17
Bharwad
2 P.I. Khimjibhai Shiyabhai Bharai 19
3 A.S.I. Gautambhai Raghavjibhai Trivedi 33
4 A.S.I. Rajendrasinh Ghanshyamsinh 34
Jadeja
5 Gajendrasinh Devisinh Rana 36
Documentary Evidences
Sr.No. Document Particulars Exh. No.
1 Panchnama 18
2 Original Complaint 20
3 Resolution of Prohibition Section 120 21
4 Search Panchnama 22
5 Resolution of Prohibition Section 120 23
6 Search Panchnama 24
7 Resolution of Prohibition Section 120 25
8 Search Panchnama 26
9 Muddamal forwarding letter 27
10 FSL forwarding letter with report 28
11 Record of Station diary entry No.15 37
3.6. After appreciating the evidence on record and on completion of trial, the Trial Court has found that prosecution Page 4 of 14 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Tue Jun 03 2025 Downloaded on : Tue Jun 03 21:37:27 IST 2025 NEUTRAL CITATION R/CR.A/493/2008 JUDGMENT DATED: 02/06/2025 undefined has failed to prove charges levelled against Accused thereby, acquitted Accused from the charges levelled against them.
4. Heard learned Additional Public Prosecutor Ms.Jirga Jhaveri for Appellant - State and learned advocate Mr.R.R.Trivedi for Respondent No.1 - Accused No.1. 4.1. At the outset, learned APP would submit that Trial Court has committed grave error in acquitting the Accused from charges which are grave in nature thereby committed gross error of law. Learned APP would further submit that prosecution has examined witnesses to prove charges against Accused which were not duly appreciated by Trial Court in proper perspective. Learned APP would further submit that complainant happens to be police official having no grudges against Accused, could not falsely implicate Accused for the offences in question.
4.2. It is further submitted that Accused No.1 found with liquor bottles having no permit with him to carry it so, Accused No.1 could have been held guilty for committing an offence as enumerated in the charge so far as Prohibition Act is concerned. Learned APP would further submit that Page 5 of 14 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Tue Jun 03 2025 Downloaded on : Tue Jun 03 21:37:27 IST 2025 NEUTRAL CITATION R/CR.A/493/2008 JUDGMENT DATED: 02/06/2025 undefined documentary evidence would support the case of prosecution whereby, it has been proved beyond doubt that Accused No.1 is guilty of offence under the Prohibition Act. Learned APP would further submit that so far as recovering Marijuana from the farm of Accused No.2 is concerned, report of Forensic Science Laboratory (FSL) is not properly appreciated by Trial Court, but, as Accused No.2 died, at this stage, she would not like to further elaborate her argument so far as charges levelled against Accused No.2 in relation to violation of provisions of N.D.P.S. Act as appeal qua Accused No.2 stands already abated.
4.3. So, making the aforesaid submissions, learned APP would request this Court to allow the present appeal.
5. Per contra, learned advocate Mr.R.R.Trivedi appearing for the Accused No.1 respectfully submit that there is no error much less any gross error of law committed by Trial Court while acquitting Accused. He would submit that unless there is any erroneous, perverse and arbitrary reasons assigned by the Trial Court while acquitting Accused, this Court may not disturb such finding while examining impugned judgement while exercising its power under Section 378 of the Code of Page 6 of 14 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Tue Jun 03 2025 Downloaded on : Tue Jun 03 21:37:27 IST 2025 NEUTRAL CITATION R/CR.A/493/2008 JUDGMENT DATED: 02/06/2025 undefined Criminal Procedure.
5.1. Learned Counsel Mr. Trivedi would further submit that liquor bottles alleged to have been recovered from Accused No.1 was not sent for examination of FSL whereby, it has not been proved beyond doubt that alleged substance found in English liquor bottles was liquor itself. Learned Counsel Mr. Trivedi would further submit that as Accused No.2 already died and present appeal stand abetted, he would also not like to further elaborate his arguments qua charges of N.D.P.S. Act levelled against dead Accused. Nonetheless, he would submit that prosecution has miserably failed to prove that mandatory procedure stipulated under Section 42 read with Section 57 of the N.D.P.S. Act was complied with by the raiding party whereby, charges are not proved against Accused.
5.2. Making the aforesaid submissions, he would request this Court to dismiss the appeal.
6. Before adverting the issue germane in the present appeal, it would be apt to refer and rely upon decision of the Hon'ble Supreme Court of India in case of Babu Page 7 of 14 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Tue Jun 03 2025 Downloaded on : Tue Jun 03 21:37:27 IST 2025 NEUTRAL CITATION R/CR.A/493/2008 JUDGMENT DATED: 02/06/2025 undefined Sahebagouda Rudragoudar and Ors. vs. State of Karnataka [(2024) 8 SCC 149] whereby, it has laid down the scope and ambit of interference of this Court while hearing acquittal appeal.
"39. This Court in the case of Rajesh Prasadv. State of Bihar and Another, (2022) 3 SCC 471 encapsulated the legal position covering the field after considering variousearlier judgments and held as below: -
"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [ Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an 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.Page 8 of 14 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Tue Jun 03 2025 Downloaded on : Tue Jun 03 21:37:27 IST 2025
NEUTRAL CITATION R/CR.A/493/2008 JUDGMENT DATED: 02/06/2025 undefined 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 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."
40. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: -
"8.1.The acquittal of the Accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after re- appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view Page 9 of 14 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Tue Jun 03 2025 Downloaded on : Tue Jun 03 21:37:27 IST 2025 NEUTRAL CITATION R/CR.A/493/2008 JUDGMENT DATED: 02/06/2025 undefined which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the Accused was proved beyond a reasonable doubt and no other conclusion was possible."
41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the Accused has to be exercised within the four corners of the following principles:-
41.1 That the judgment of acquittal suffers from patent perversity; 41.2 That the same misreading/omission to evidence on record; is based on a consider material 41.3 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.
42. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
7. Now, keeping in mind the aforesaid ratio laid down in the aforesaid decision, I have to examine the merit of the present appeal.
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NEUTRAL CITATION R/CR.A/493/2008 JUDGMENT DATED: 02/06/2025 undefined
8. I have minutely gone through the evidence came on record and after its re-appreciation which is permissible while examining acquittal appeal at the instance of State, unable to disagree with the view taken by the Trial Court.
9. The following glaring facts which are albeit noticed by the Trial Court and few noticed by this Court requires to be taken note of:-
i. The charge levelled against Accused No.1 was in relation to the recovery of English liquor bottles from him. To prove such charge, investigating officer was required to send such seized article to FSL whereby, it could have been easily confirmed the presence of liquor in the seized bottles. ii. It has been admitted by investigating officer in his cross- examination that there is no muddamal of liquor sent for testing by FSL. He has admitted that he has not taken any sample of liquid (liquor) from the sealed bottle seized during raid and not sent it for testing of FSL. He has admitted that no such procedure was undertaken by him.
iii. No proper procedure has been followed by the Page 11 of 14 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Tue Jun 03 2025 Downloaded on : Tue Jun 03 21:37:27 IST 2025 NEUTRAL CITATION R/CR.A/493/2008 JUDGMENT DATED: 02/06/2025 undefined Investigating Officer who happens to be a complainant which has been confirmed by reading Panchnama at Exchibit-18 and his deposition at Exhibit-19.
iv. To prove that Accused No.1 was having possession of the English liquor with him, article (muddamal) seized by Investigating Officer requires to be sent to FSL for its testing thereby, it could have been proved that article seized was English liquor and / or a liquor as the case may be which was prohibited substance in the State as Accused was not having any permit. But, as it came on record that Investigating Officer has not taken any pain to send it for testing by FSL, charges levelled against Accused so far as violation of different sections of the Prohibition Act is concerned, is not proved.
v. It appears that Investigating Officer who happens to be complainant has shabbily investigated entire case which ultimately resulted into acquittal of Accused. Had there been report of FSL so far as English liquor is concerned, Trial Court could have surely examined it and could have reached to certain conclusion and if such report found to be positively confirm presence of English liquor, Accused could have held Page 12 of 14 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Tue Jun 03 2025 Downloaded on : Tue Jun 03 21:37:27 IST 2025 NEUTRAL CITATION R/CR.A/493/2008 JUDGMENT DATED: 02/06/2025 undefined guilty for committing offence of possessing liquor without permit in the State under Prohibition Act. But, in absence of such FSL report, Accused was correctly acquitted by Trial Court.
vi. So far as violation of Section 27 read with Section 29 of the N.D.P.S. Act is concerned, as Accused No.2 from whose alleged farm, Marijuana was recovered already died, nothing further requires to be observed except to the fact that Trial Court has categorically observed that Investigating Authority has not followed mandatory provisions under Section 42 read with Section 57 of the N.D.P.S. Act while seizing the contraband substance i.e. Marijuana. Further, investigating officer has further admitted in his cross-examination that he has not confirmed the fact as to whether farm was owned/possessed by Accused No.2 or not.
10. Thus, in view of the aforesaid facts and circumstances of the case and after re-appreciating the evidence on record, I am in complete agreement with reasons assigned by the Trial Court while acquitting Accused. Having not found any perversity, arbitrariness and any erroneous findings on the part of Trial Court, in view of the ratio laid down in case of Page 13 of 14 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Tue Jun 03 2025 Downloaded on : Tue Jun 03 21:37:27 IST 2025 NEUTRAL CITATION R/CR.A/493/2008 JUDGMENT DATED: 02/06/2025 undefined Babu Sahebagouda Rudragoudar and Ors. (supra), the present appeal requires to be dismissed.
11. The appeal is accordingly dismissed. Resultantly, the impugned judgment and order of the Trial Court is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings called for, be sent back to the concerned Trial Court forthwith.
(MAULIK J.SHELAT,J) Bhoomi Page 14 of 14 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Tue Jun 03 2025 Downloaded on : Tue Jun 03 21:37:27 IST 2025