Gujarat High Court

The State Of Gujarat vs Topandas Nathalal on 2 June, 2025

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                          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
                     ==========================================================

                                 Approved for Reporting                          Yes           No

                     ==========================================================
                                                     THE STATE OF GUJARAT
                                                             Versus
                                                   TOPANDAS NATHALAL & ANR.
                     ==========================================================
                     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
                     ==========================================================

                        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

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(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

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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.

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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.

                                     Bharwad



                                     Jadeja




                                                Documentary Evidences

                        Sr.No.       Document Particulars                                     Exh. No.

3.6. After appreciating the evidence on record and on

completion of trial, the Trial Court has found that prosecution

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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

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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

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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

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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.

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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

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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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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

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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

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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

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Babu Sahebagouda Rudragoudar and Ors. (supra), the present

appeal requires to be dismissed.

11. The appeal is accordingly dismissed. Resultantly, the