Gujarat High Court
State Of Gujarat vs Mahendrasingh Dadusingh Rajput on 28 July, 2025
NEUTRAL CITATION
R/CR.A/1182/2013 JUDGMENT DATED: 28/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1182 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
MAHENDRASINGH DADUSINGH RAJPUT
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Appearance:
MR HARDIK PANDYA, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 28/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH
ROY)
1. Assailing the judgment dated 07/05/2013 passed in
Special (NDPS) Case No.4 of 2011 on the file of the learned
Special Judge and Second Additional District Judge,
Bhavnagar whereby the respondent who is the sole accused in
the said case was acquitted of the charges punishable under
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Section 8(c) and 20(b) of the NDPS Act, the present appeal is
preferred by the State.
2. Factual matrix of the prosecution case may be stated as
follows:
2.1. On 18/04/2011, PW-8 who is the Investigation Officer,
Police Sub Inspector of SOG received a confidential
information that a person is travelling on Bajaj vehicle bearing
registration no.GJ-4C-1741 with opium. On receipt of the said
information, after complying with the prescribed procedure,
PW-8 along with his police staff reached near railway water
tank of Bhavnagar and were waiting for the said Bajaj vehicle
bearing registration no.GJ-4C-1741. While so, at about 5:00
p.m. on that day, they found the accused coming on Bajaj
vehicle bearing registration no.GJ-4C-1741. They intercepted
the said vehicle in the presence of the mediators, PW-1 and
PW-6. They questioned the accused relating to his name and
other details and found out his identity. When the police
asked him whether he would opt to be searched in the
presence of the Gazetted Officer, he denied. Therefore, the
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police searched him and the vehicle. One reg-zine bag was
found in the front carrier of the said Bajaj vehicle bearing
registration no.GJ-4C-1741. They searched it and found a
plastic bag in it containing opium. Police seized the said
contraband in the presence of PW-1 and PW-6 who are the
mediators and prepared a seizure report. All the proceedings
at the scene of offence are prepared in Gujarati language
whereas the accused knows only Hindi language. The
accused was arrested. Thereafter, the contraband was sealed
and packed in the presence of the mediators and it was sent
for chemical examination to the Forensic Science Laboratory
(FSL). The Chemical Analyst found the contraband to be the
opium and he has issued a report to that effect. After
completion of the investigation, police filed charge sheet
against the accused for the offences punishable under Section
8(c) and 20(b) of the NDPS Act.
3. In the trial court, which is a special court for trial of
NDPS cases, after the accused made his appearance before
the said court, charges under Section 8(c) and 20(b) of the
NDPS were framed against him and the same were read over
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and explained to him. The accused denied the said charges
and claimed to be tried.
4. During the course of trial, the prosecution got examined
PW-1 to PW-16 witnesses and got marked 36 exhibits to
substantiate its case against the accused.
5. At the conclusion of the trial, after considering the
evidence on record and on appreciation of the same, the trial
court found the accused not guilty for the charges levelled
against him and acquitted him of the said charges by the
impugned judgment.
6. Aggrieved by the said judgment of acquittal, the present
appeal is preferred by the State questioning the legality and
validity of the impugned judgment.
7. When the appeal came up for hearing, we have heard
learned APP Mr. Bhargav Pandya for the State. Despite
service of notice on respondent no.1, he did not make his
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appearance in this appeal. We have provided him an
opportunity on 11/06/2025 by directing to list the matter
today for hearing. Today also, he did not appear. Therefore,
as the appeal is listed on our board under the caption 'For
Final Hearing-In critically old matters of year 2011 to 2020'
we are not inclined to further adjourn the hearing of the
appeal. Therefore, we have decided to dispose of the appeal
as per the material available on record on merits.
8. As can be seen from the impugned judgment of the trial
court, the trial court believed the version of the prosecution
that the accused was intercepted while he was coming on
Bajaj vehicle bearing registration no.GJ-4C-1741 and that
some contraband was seized from the front carrier of the said
vehicle from him. But the trial court held that it is not proved
that the material that was seized from him from the rag-zine
bag is opium. According to the findings recorded by the trial
court, out of the two mediators, PW-1 did not support the case
of the prosecution and he turned hostile to the case of the
prosecution. Although PW-6 who is the another mediator
supported the case of the prosecution, the trial court found
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that he is a stock witness for the police who appeared as
mediator in several cases of like nature. Therefore, the trial
court did not place reliance on his testimony in the absence of
any corroboration of his testimony. Further, the trial court
also found that the slips affixed while sealing and packing the
contraband are found to be loose when it reached the FSL and
based on the judgment of the Division Bench of this High
Court rendered in the case of Kamalprasad Ramajiprasad
Gupta and another vs. State of Gujarat, he did not place
reliance on the said seizure of the contraband as the slips are
kept loosely inside the sample. Learned trial judge also found
that the sealing and packing process is also not properly done
of the contraband. Therefore, considering the said evidence
on record relating to the sealing and packing of the
contraband and more particularly as slips affixed inside the
sample are found to be loose, the trial court has given benefit
of doubt to the accused and thereby acquitted him of the said
charges.
9. We have subjected the said evidence on record to strict
judicial scrutiny and on reappraisal of the evidence, we do not
find any infirmities in the appreciation of the evidence made
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by the trial court. The panch witnesses relating to the seizure
of the contraband are PW-1 and PW-6. As noticed supra, PW-
1 did not support the case of the prosecution at all. Though
PW-6 supported the case of the prosecution, it is in his
evidence that he has appeared as a mediator for the police in
the cases of like nature in many cases. Therefore,
undoubtedly he is a stock witness to the police. So, when the
contraband was alleged to have been seized in the presence of
both, PW-1 and PW-6 and PW-1 who is the independent
mediator did not support the case of the prosecution and
when PW-6 is a stock witness and his testimony is not
corroborated by an independent source, no reliance can be
placed on his testimony as was rightly done by the trial court.
10. Further, the sealing and packing of the contraband was
not properly done in this case. The police who seized the said
contraband are from the 'D' Division Police Station but the
seal of the said 'D' Division Police Station is not affixed on the
muddamal slips. So, it makes the seizure of the contraband
doubtful. Further, the slips that are affixed inside the sample
are found to be loosened. The analyst from the FSL examined
as PW-7 admitted in his evidence that when the contraband
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reached the FSL that the slips affixed to it are found to be in
loose condition. Even PW-8 who is the Investigation Officer
and PW-13 who is the Gazetted Officer, admitted that the seal
of 'D' Division Police Station is not affixed on muddamal box.
Therefore, these facts throw any amount of doubt regarding
the fact that the seized material is actually the opium or not.
The Division Bench of this Court in the above cited decision,
held that if the slip is kept loosely inside the sample it would
create doubt on the prosecution case and tampering of the
contraband article cannot be ruled out and, therefore,
conviction was reversed.
11. The analogy laid down in the aforesaid judgment
squarely applies to the present case. In the instant case also,
the slips affixed to the sample are found in a loose condition.
Further, the stamp and seal of the concerned police station is
not affixed on the sealed boxes. All these facts create a doubt
on the prosecution case and the tampering of the contraband
cannot be ruled out in this case also.
12. Therefore, the finding of the acquittal recorded by the
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trial court is based on proper appreciation of the evidence on
record and on reappraisal of the evidence, we also completely
concur with the said findings recorded by the trial court. We
do not find any manifest error of law or infirmities in the
findings recorded by the trial court. So, the impugned
judgment of acquittal of the trial court is sustainable and it is
not liable to be set aside. So, the appeal fails and is liable to
be dismissed.
13. Resultantly, present appeal of the State is dismissed.
Bail bond, if any, shall stand discharged.
14. Record and proceedings be sent back forthwith to the
concerned court.
(CHEEKATI MANAVENDRANATH ROY, J)
(D. M. VYAS, J)
ILA
