Gujarat High Court
State Of Gujarat vs Unadbhai Anakbhai Khachar on 6 June, 2025
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R/CR.A/2077/2009 ORDER DATED: 06/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2077 of 2009
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STATE OF GUJARAT
Versus
UNADBHAI ANAKBHAI KHACHAR
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MR. JAYDEEP M SHUKLA(6974) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 06/06/2025
ORAL ORDER
1. The present appeal has been preferred by the State under
Section 378 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as "the Code"), assailing the judgment and order dated
29.07.2009 passed by learned Special Judge, Fast Track Court No.4,
Bhavnagar, Camp at Botad (hereinafter referred to as " the trial
Court") in Special (N.D.P.S.) Case No.04 of 2006, whereby accused
was acquitted of the charges framed under Sections 8, 20(B) and 22
of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for
short, the Act).
2. The brief facts emerging from the record are as under:-
2.1 As per the complaint registered at the instance of Police Sub-
Inspector Kapilbhai Damjibhai Nakum with Gadhada Police Station,
District Bhavnagar, it is alleged that on 07.12.2005, Constable
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Bhagirathsinh Vikramsinh Gohil received information that the
accused was cultivating cotton along with marijuana (ganja) on his
agricultural land.
2.2. Upon receipt of this information, the concerned higher
officers were informed, and a raid was organized on the same day
at the accused's agricultural field. The raid was conducted in the
presence of the concerned Forensic Science Laboratory (FSL)
Officer, and a panchnama was duly prepared.
2.3. During the raid, marijuana plants were seized from the farm in
the presence of panch witnesses and the FSL Officer, and the
accused was arrested at the spot. After following all procedural
formalities under the provisions of the Act, and upon receipt of a
positive FSL report confirming that the seized substance was
marijuana, the investigation was concluded.
2.4. Subsequently, a chargesheet was filed against the accused
under Sections 8, 20(B), and 22 of the Act before the Special Court.
2.5. In support of its case, the prosecution examined the following
witnesses and produced documentary evidence to substantiate the
charges levelled against the accused:--
ORAL EVIDENCE
P.W. NAME OF THE WITNESS EXH.
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DOCUMENTARY EVIDENCE
Sr. PARTICULARS EXH.
No.
3 Resolution No.9 under Section 50(1) of the Act 13
Botad
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2.6. Thereafter, upon appreciation of the evidence on record, the
learned trial Court observed that the prosecution had failed to
establish the charges against the accused beyond reasonable doubt
and accordingly acquitted them of all the charges levelled against
them. Aggrieved by the said judgment and order of acquittal, the
State has preferred the present appeal.
3. Heard learned Assistant Public Prosecutor, Ms. Jirga Jhaveri, at
length on behalf of the appellant-State. She has taken me through
oral and documentary evidence on the record of the case.
3.1. Learned Additional Public Prosecutor (APP) has vehemently
submitted that the accused was engaged in the cultivation of
marijuana, which is a contraband substance, and having indulged in
such an activity, he is not entitled to the benefit of doubt in the
commission of a heinous offence under the Act.
3.2. It is further submitted by the learned APP that merely because
the panch witnesses have turned hostile, the same cannot be a
ground to discard the other cogent and reliable evidence available
on record.
3.3. Learned APP has further submitted that the accused was
afforded an opportunity of search in the presence of a Gazetted
Officer, and therefore, the mandatory requirements of the NDPS Act
were duly complied with by the raiding officer.
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3.4. It is next submitted that the Forensic Science Laboratory (FSL)
Officer has confirmed, through his report, that the sample seized
from the farm of the accused was marijuana. The report also
corroborates that the crop found at the site was indeed marijuana.
Therefore, there was no justifiable reason for the learned trial Court
to acquit the accused.
3.5. Learned APP has also argued that a minor discrepancy in the
sealing of the sample collected from the accused's farm cannot, ipso
facto, be treated as a ground for granting the benefit of doubt to the
accused and recording an order of acquittal.
3.6. Lastly, it is submitted that in the absence of any contrary
evidence to establish that the accused was not in possession of the
agricultural land in question, the mere non-production of
agricultural or revenue records pertaining to the land from which
the contraband was seized cannot be taken as a ground to acquit
the accused.
4. Before delving into the merits of the present appeal, it would
be apposite to revisit the settled position of law as laid down by the
Hon'ble Supreme Court in a catena of authoritative
pronouncements, wherein the Apex Court has laid down guiding
principles and parameters to be borne in mind while adjudicating
appeals arising from judgments of acquittal.
4.1. One of the recent pronouncement, in which, the Supreme
Court of India in a case of Babu Sahebagouda Rudragoudar and
Others vs. State of Karnataka, 2024 8 SCC 149 has held as under :-
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"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, re- appreciate
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 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."
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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 re- appreciate 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 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."
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4.2. Upon re-appreciation of the evidence on record and after
carefully examining the reasons assigned by the learned Trial Court
while acquitting the accused, the following shortcomings in the
prosecution's case have been identified:
a) The prosecution has failed to establish ownership of the land
from which the samples of marijuana were allegedly collected
during the raid. To substantiate the claim that the accused was the
owner of the land in question, revenue records or title documents
pertaining to the agricultural land were required to be produced,
which the prosecution failed to place on record.
b) No statement of the Talati-cum-Mantri has been brought on
record to corroborate the fact that the land in question was owned
by the accused.
c) Although the Panchnama refers to the agricultural land in
question, for reasons best known to the prosecution, such a crucial
document has not been exhibited during the course of the trial.
d) The statements of neighbors, which could have supported the
prosecution's claim that the land was indeed owned or possessed
by the accused, were not recorded. According to the complainant's
case, the land was jointly owned or cultivated by the accused;
however, no co-owner or co-cultivator was examined before the
trial court to establish the charge against the accused and even not
being arrested being abettor.
e) The prosecution has failed to satisfactorily discharge the
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burden of proving the ownership of the land in question as well as
the conscious possession of the contraband (Muddamal) by the
accused.
f) Furthermore, it has emerged from the oral testimony of a
police constable that when the seized Muddamal was initially taken
to the FSL, it was not accepted on the ground that the seal was
either improperly affixed or unreadable.
g) The learned Trial Court has also observed that the seal affixed
on the seized Muddamal articles at the time of Panchnama was
different from the one found on the sample sent to the FSL for
examination, thereby raising serious doubt regarding possible
tampering with the sample can not be ruled out.
h) The panch witnesses turned hostile and did not support the
case of the prosecution, as a result of which the Panchnama could
not be duly proved on record. FSL officer came to site at late
evening and as per later part of panchnama do suggest that FSL
officer in light of torch collected sample of marijuana but he could
not confirmed the fact that it owned by accused. The recovery of
muddamal from the farm of accused thus, could not be proved
beyond doubt on record.
4.3. The learned Trial Court has also observed that, as per the
decision of the Hon'ble Supreme Court of India in the case of Alakh
Ram v. State of Uttar Pradesh, reported in AIR 2004 SC 2907, a
heavy burden lies upon the prosecution to establish that the
psychotropic substance allegedly recovered from the agricultural
land belonged to the accused. In such a case, the prosecution is
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required to prove beyond reasonable doubt both the ownership of
the land and the conscious possession of the contraband by the
accused. In the present case, the prosecution has egregiously failed
to discharge this burden satisfactorily, and therefore, the accused is
entitled to be acquitted.
5. Thus, in view of the aforesaid peculiar facts and circumstances
of the case and keeping in mind ratio laid down by the Hon'ble
Apex Court of India in the case of Babu Sahebagouda Rudragoudar
(supra) , I am of the view that trial Court has not committed any
serious error of law and as such prosecution has miserably failed to
prove the charges levelled against accused having not successfully
discharged heavy burden which ought to have been discharged in a
NDPS case.
6. Hence, this Court is of the considered opinion that the present
appeal is devoid of merit and deserves to be dismissed.
Accordingly, the appeal stands DISMISSED. Resultantly, the
impugned judgment and order of acquittal passed by the learned
trial Court is hereby confirmed. Bail bonds shall stand cancelled.
The record and proceedings, if requisitioned, shall be returned to
the concerned trial Court forthwith.
(MAULIK J.SHELAT,J)
MANISH MISHRA
