Gujarat High Court
State Of Gujarat vs Bhagwanbhai Dahyabhai Thakkar Owner Of ... on 29 April, 2026
NEUTRAL CITATION
R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026
undefined
Reserved On : 09/04/2026
Pronounced On : 29/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1521 of 2008
==========================================================
STATE OF GUJARAT
Versus
BHAGWANBHAI DAHYABHAI THAKKAR OWNER OF BHAGWATI BOOK
STORE
==========================================================
Appearance:
MR. TIRTHRAJ PANDAYA, APP for the Appellant(s) No. 1
MR ABHAYKUMAR P SHAH(3093) for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 31.12.2007, passed by the learned Chief Judicial Magistrate, Patan in Criminal Case No. 2884/2001, for the offences punishable under Sections 18(C), 18(A)(1), 18(A)(6) and 18(A) of the Drugs and Cosmetics Act, 1940, the appellant - State of Gujarat has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short, "the Code").
2. The prosecution case as unfolded during the trial before the lower Court is that the Drug Inspector, Shri Pradip Govindlal Doshi, received secret information that the respondent was selling Oxitocin Injections without any licence or permission. Acting on this information, a raid was Page 1 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026 NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined conducted at the premises of the respondent, M/s. Bhagwati Book Stores, near Bhagwada Darwaja, Patan, where the respondent was found in possession of injections. The seized samples were sent for analysis, and as per the report of the Public Analyst, the injections were found to be substandard. The respondent failed to produce any valid licence, bills, or vouchers for the said drugs, and therefore, the complaint was lodged against the respondent-accused.
3. After investigation, sufficient prima facie evidence was found against the accused person/s and therefore charge- sheet was filed in the competent criminal Court. The charge was framed against the accused person/s. The accused pleaded not guilty and came to be tried.
4. In order to bring home the charge, the prosecution has examined 3 witnesses and also produced 16 documentary evidence before the Trial Court, which are described in the impugned judgment as under:
Oral evidences Sr. Exh.
Designation Name of Witness
No. No.
Pradip Singh Govind Singh
1 16 Complainant
Doshi
Panch Vishnubhai Mafatlal
2 42
Witness Thakkar
Panch Vipulbhai Dalpatbhai
3 43
Witness Thakkar
Page 2 of 19
Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026
NEUTRAL CITATION
R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026
undefined
Documentary evidences
Sr.
Exh.No. Description
No.
Order from the Commissioner of Food and Drug Control 1 33 Administration to initiate legal proceedings against the accused.
2 32 Copy of the Gazette.
3 18 Appointment order of the Complainant. 4 19 Central Government order.
5 20 Gazette notification determining the area/jurisdiction. 6 21 Intimation Form No. 17 provided to the accused. 7 22 Receipt for the price paid to the accused. 8 23 Copy of Form No. 16 regarding the seizure of medicines. 9 24 Statement of the accused.
Registration certificate of the shop under the Shops and 10 25 Establishments Act.
Application and order copy for the custody of seized 11 26 medicines.
12 27 Copy of the letter sent for sample analysis. 13 28 Panchnama (Official record of proceedings). 14 29 Analysis Report.
15 30 Letter informing the accused of the Analysis Report 16 31 R.P.A.D. (Registered Post) acknowledgment receipt.
5. After hearing both the parties and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the accused for the offences for which they were charged, by holding that the prosecution has failed to Page 3 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026 NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined prove the case beyond reasonable doubt.
6. Learned APP for the appellant - State has pointed out the facts of the case and having taken this Court through both, oral and documentary evidence, recorded before the learned trial Court, would submit that the learned trial Court has failed to appreciate the evidence in true sense and perspective; and that the trial Court has committed error in acquitting the accused. It is submitted that the learned trial Court ought not to have given much emphasis to the contradictions and/or omissions appearing in the evidence and ought to have given weightage to the dots that connect the accused with the offence in question. It is submitted that the learned trial Court has erroneously come to the conclusion that the prosecution has failed to prove its case. It is also submitted that the learned Judge ought to have seen that the evidence produced on record is reliable and believable and it was proved beyond reasonable doubt that the accused had committed an offence in question. It is, therefore, submitted that this Court may allow this appeal by appreciating the evidence led before the learned trial Court.
7. As against that, learned advocate for the respondent/s would support the impugned judgment passed by the learned trial Court and has submitted that the learned trial Court has not committed any error in acquitting the Page 4 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026 NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined accused. The trial Court has taken possible view as the prosecution has failed to prove its case beyond reasonable doubt. Therefore, it is prayed to dismiss the present appeal by confirming the impugned judgment and order passed by the learned trial Court.
8. I have heard the submissions made by the learned advocates for the respective parties and also gone through the oral and documentary evidence, independently and dispassionately, and considering the impugned judgment and order of the trial Court, the following aspects weighed with the Court:
8.1. It is a case of the prosecution that the accused had stocked Oxitocin Injections for sale, and had not kept a record of its purchase, and also did not have the license to sell the same, and as the said information was received by the Drug Inspector, a raid was conducted in presence of the panch witness on 28.05.2000, wherein five boxes of Oxitocin Injections were found in the said raid, and therefore, a complaint for the alleged breach of Sections 18(C), 18(A)(1), 18(A)(6) and 18(A) of the Drugs and Cosmetics Act, 1940, which is punishable under Sections 27 and 28, was filed. The samples were taken as per Section 23 of the Drugs and Cosmetics Act, 1940. Page 5 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026
NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined 8.2. The prosecution has examined the complainant that is the Drug Inspector as PW- 1 vide Exh-16. In his cross- examination, he stated that he has complied with the provisions of the Drugs and Cosmetics Act, 1940 with respect to collecting the sample, purchasing after tendering the fair price thereof, and taking a written acknowledgment. The said written acknowledgment is produced vide Exh-22, and the samples have been taken as per provisions of Section 23(4) of the Drugs and Cosmetics Act, 1940 read with provisions of the Drugs Rules, 1945, and had applied a seal, and had paid an amount Rs. 220/- in cash, and taken the receipt thereof, as per Form-17(A) of the Drugs Rules 1945. In the cross-examination, he has stated that in Form-18(3), copies were taken and one seal was placed by him.
8.3. It is the case of the accused that as per Section 25(4), in view of the fact that the accused was intended to adduce evidence in contravention of the report signed by the Government Analyst, which is produced vide Exh- 29, and as no opportunity was given to him to send the sample for test or analysis to the Central Drugs Laboratory, which shall have to test or analyse the report in writing signed by the authority of Page 6 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026 NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined the Director of Central Drugs Laboratory. But the fact remains that as per the record, which is produced vide Exh-30 and 31, the said report was already was intimated on 21.04.2001, which can be proved from the document produced vide Exhibit-30 and
31. Thereby, the prosecution has proved that on the receipt of the said report, one copy of the report was given to the respondent, and if the report produced vide Exh-30 is taken into consideration, the said report also states that the respondent has to inform from whom the said Oxitocin Injections has been purchased, and to produce the bill from where they have purchased the same. But the respondent did not reply to the same nor has the respondent exercised the powers under Section 25(3) of the Drugs and Cosmetics Act, 1940 wherein, within 28 days of the receipt of the copy of the report which is produced vide Exhibit 30 had to notify in writing to the inspector, that he intends to adduce evidence in contravention of the report. In view of the same fact, no such intimation was given by the respondent in the question of sending the said sample to the Central Drugs Laboratory would not arise. 8.4. Moreover, the fact that the respondent has already Page 7 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026 NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined taken the fair price for selling the same, and a receipt to that effect has been produced vide Exh- 21, which is stated in Form- A, that they have received an amount of Rs.220/-. The question that the said Oxitocin Injections was not for sale cannot be a ground for granting acquittal. In view of the fact that there is a provision under the Act that, if the respondent refuses to take the fair price, the receipt could be issued under Provisions of 56(A) of the Drugs Rules 1945. In view of the same the respondent has already taken the fair price, it cannot be said that the respondent was not selling the same. 8.5. In the present case, the prosecution has failed to prove that the said stock of Oxitocin Injections was intended to be sold, and as per law, mere possession of drugs is not sufficient unless, there is evidence to show that they are intended for sale.
8.6. The prosecution has also failed to produce any evidence with regard to the actual participation of the accused with respect to the fact that, the accused was selling the same or was stocking them for sale.
8.7. There is no evidence to show that Oxitocin Injections Page 8 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026 NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined were obtained from the owner of the store, and were exhibited in a manner to attract customers for purchasing them. 8.8 The learned advocate for the respondent has relied on the Judgment reported in the AIR 1979 SC Page 564, more particularly "Para-4" which reads as under;
"It was contended by Mr. Singh that in order to fall within the ambit of this section the accused must manufacture the drugs for sale or stock or exhibit for sale or distribute the same. There is no evidence in this case to show that the appellant had any shop or that he was a distributing agent. All that has been shown is that the tablets concerned were recovered from his possession. It was urged that possession simpliciter of the tablets of any quantity whatsoever would not fall within the mischief of S. 27 of the Act. On an interpretation of S. 27, it seems to us that the argument of Mr. Singh is well founded and must prevail. The words used in S. 27, namely, "manufacture for sale, sells," have a comma after each clause but there is no comma after the clause "stocks or exhibits for sale." Thus the section postulates three Page 9 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026 NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined separate categories of cases and no other: (1) manufacture for sale; (2) actual sale; (3) stocking or exhibiting for sale or distribution of any drugs. The absence of any comma after the word "stocks" clearly indicates that the clause "stocks or exhibits for sale" is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purpose of sale and unless all the ingredients of this category are satisfied S. 27 of the Act would not be attracted. In the present case there is no evidence to show that the appellant had either got these tablets for sale or was selling them or had stocked them for sale. Mr. Khanna appearing for the State, however, contended that the word "stock" used in section is wide enough to include the possession of a person with the tablets and where such a person is in the possession of tablets of a very huge quantity, a presumption should be drawn that they were meant for sale or for distribution. In our opinion, the contention is wholly untenable and must be rejected. The interpretation sought to be placed by Shri Khanna does not flow from a true and proper interpretation of Page 10 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026 NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined S. 27. We, therefore, hold that before a person can be liable for prosecution or conviction under S. 27(a)(i)(ii) read with Section 18(c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. The possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act. If, therefore, the essential ingredients of S. 27 are not satisfied the plea of guilty cannot lead the Court to convict the appellant."
Therefore, before a person can be liable for prosecution under Section 27 read with Section 18 of the Drugs and Cosmetics Act, 1940, it has to be proved by the prosecution affirmatively, that the accused was selling the same or had stocked same or was exhibiting the same for sale. The mere possession simpliciter of the article does not appear to be punishable under any of the provisions of the Act. 8.9. Moreover, the other factor which has also been taken into consideration by the Court of learned Chief Judicial Magistrate, Patan is that, if the evidence of the complainant is Page 11 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026 NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined taken into consideration, the complainant in his evidence, vide Exh-16, has specifically stated that he had placed a seal while sending the same for analysis, and if the panchanama, which is produced vide Exh-28, is taken into consideration also states, that a seal was placed underside of each box, and thereafter, was sent for analysis, and if the certificate of test by Government Analyst under Section 25(1) of the Drugs and Cosmetics Act, 1940, which is produced vide Exh-29 is taken into consideration, which states of four red seals of wax. Therefore, there is a contradiction in the way the samples were sent for analysis.
8.10. The prosecution has examined Vishnubhai Thakkar, as PW-2 vide Exhibit-42, who was the panch witness with respect to the seal and sampling. The panchanama of which is produced vide Exhibit-28, he has not supported the case of the prosecution, and has turned hostile.
8.11. The prosecution has thereafter examined Vipulbhai Thakkar as PW-3 vide Exh-43, who was also the panch witness of the panchanama produced vide Exh-28. He has also turned hostile, and has not supported the case of the prosecution. Page 12 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026
NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined 8.12. The Trial Court has taken into consideration the fact that the prosecution has failed to prove that the samples were sent to the Government Analyst for the report, were the same that were sealed. In view of the fact that the panchnama produced vide Exh-28, and also the deposition of the complainant states that one seal was applied, and the report of the analyst produced vide Exh-29, states that four seals of the wax were applied. The prosecution has also not been able to prove that the accused had stored the same Oxitocin Injections for sale.
9. Further, learned APP is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In above view of the matter, I am of the considered opinion that the Court below was completely justified in passing impugned judgment and order.
10. Considering the impugned judgment, the trial Court has recorded that there was no direct evidence connecting the accused with the incident and there are contradictions in the depositions of the prosecution witnesses. In absence of the direct evidence, it cannot be proved that Page 13 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026 NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined the accused are involved in the offence. Further, the motive of the accused behind the incident is not established. The trial Court has rightly considered all the evidence on record and passed the impugned judgment. The trial Court has rightly evaluated the facts and the evidence on record.
11. It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
"... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93:
(AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."
12. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the Page 14 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026 NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined discussion of evidence at length is not necessary.
13. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:
"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."
Page 15 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026
NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined
14. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
15. In the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415, the Hon'ble Apex Court has observed as under:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to Page 16 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026 NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come 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 Page 17 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026 NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined 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."
17. The Hon'ble Apex Court, in a recent decision, in the case of Constable 907 Surendra Singh and Another V/s State of Uttarakhand reported in (2025) 5 SCC 433, has held in paragraph 24 as under:
"24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence Page 18 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026 NEUTRAL CITATION R/CR.A/1521/2008 CAV JUDGMENT DATED: 29/04/2026 undefined available on record."
16. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, 1973 no case is made out to interfere with the impugned judgment and order of acquittal.
17. In view of above facts and circumstances of the case, on my careful re-appreciation of the entire evidence, I found that there is no infirmity or irregularity in the findings of fact recorded by learned trial Court and under the circumstances, the learned trial Court has rightly acquitted the respondent/s - accused for the elaborate reasons stated in the impugned judgment and I also endorse the view/finding of the learned trial Court leading to the acquittal.
18. In view of the above and for the reasons stated above, the present Criminal Appeal fails to prove its case and the same deserves to be dismissed and is dismissed, accordingly. Record & Proceedings be remitted to the concerned trial Court forthwith.
(SANJEEV J.THAKER,J) ADITYA SINGH Page 19 of 19 Uploaded by ADITYA SINGH(HC02376) on Wed Apr 29 2026 Downloaded on : Wed Apr 29 22:26:42 IST 2026