Gujarat High Court
State Of Gujarat vs Navinkumar Baleshwarsinh Rajput on 26 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1087 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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STATE OF GUJARAT
Versus
NAVINKUMAR BALESHWARSINH RAJPUT
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Appearance:
PUBLIC PROSECUTOR for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MR VINOD M GAMARA(5910) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 26/06/2025
ORAL JUDGMENT
1. The appeal is filed by the appellant State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
against the judgement and order of acquittal passed by the
learned Special Judge, Bhavnagar (hereinafter referred to as
"the learned Trial Court") in Special (NDPS) Case No.
5/2012 on 31.01.2013, whereby, the learned Trial Court
has acquitted the respondents extending benefit of doubt for
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the offence punishable under Sections 8(c) and 20(b) of The
Narcotics Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as "the NDPS Act" for short).
1.1 The respondent is hereinafter referred to as "the
accused" as he stood in the original case for the sake of
convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case
are as under:
2.1 On 07.05.2012, the complainant Manojsinh
Natwarsinh Chowda was working as Police Inspector,
Special Operation Group, Bhavnagar and he received secret
information at about 12.15 hours that the accused who was
residing in Block No. 439, 25 Varia Blot, Near Sanskar
Vidyalaya at Akhlol Jakatnaka had narcotics substance in
two rexine bags, one black and one coffee colour and after
following the due procedure, the place was raided by the
complainant and the other team members and 11.700 kgs
of ganja worth Rs. 70,200/- was found from the residence of
the accused. The complaint was filed by the complainant
under Section 8(c), 20(d) of the NDPS Act which came to be
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registered at Bhavnagar B Division Police Station II - C.R.
No. 61 of 2012.
2.2 The Investigating Officer recorded the statements of
the connected witnesses and seized the necessary
documents and after completion of investigation, a charge-
sheet came to be filed before the Sessions Court.
2.3 The accused was duly served with the summons and
the accused appeared before the learned Trial Court and the
copies of all the police papers were provided to the accused
as per the provisions of Section 207 of the Code. A charge at
Exh. 6 was framed against the accused and the statement of
the accused was recorded at Exh. 7, wherein, the accused
denied the contents of the charge and the entire evidence of
the prosecution was taken on record.
2.4 The prosecution examined 7 witnesses and has
produced 28 documentary evidences on record in support of
their case and after the learned filed the closing pursis at
Exh. 60, the further statement of the accused under Section
313 of the Code of Criminal Procedure, 1973 was recorded,
wherein, the accused denied all the evidence of the
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prosecution on record. The accused refused to step into the
witness box or examine witnesses on his behalf and stated
that a false case has been filed against him. After the
arguments of the learned APP and the learned advocate for
the accused were heard, the learned Trial Court by the
impugned judgement and order was pleased to acquit all the
accused from the charges levelled against them.
3. Being aggrieved and dissatisfied with the said
judgment and order of acquittal, the appellant - State has
filed the present appeal mainly stating that the impugned
judgment and order of acquittal passed by the learned Trial
Court is contrary to law and evidence on record and the
learned Trial Court has not appreciated the fact that all the
witnesses have supported the case of the prosecution and
during the cross-examination, nothing adverse has been
elicited in favor of the respondents. The case has been
proved beyond reasonable doubt and the prosecution has
successfully established the case against the respondents
and the judgment and order of acquittal is unwarranted,
illegal, and without any basis in the eyes of the law and the
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reasons stated while acquitting the respondent are
improper, perverse and bad in law. Hence the impugned
judgment and order passed by the learned Trial Court
deserves to be quashed and set aside.
4. Heard learned APP Mr. Pranav Dhagat for the
appellant State and learned advocate Mr. Vinod Gamara for
the respondent. Perused the impugned judgement and order
of acquittal and have reappreciated the entire evidence of
the prosecution on record of the case.
5. Learned APP Mr. Pranav Dhagat has taken this Court
through the entire evidence of the prosecution on record of
the case and submitted that the complainant has fully
supported the facts of his complaint. The impugned
judgement and order is perverse and learned APP has urged
this Court to quash and set aside the same and find the
respondent guilty for the offences.
5.1 Learned advocate Mr. Vinod Gamara for the
respondent has submitted that the learned Trial Court has
appreciated the evidence and passed the impugned
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judgement and order and no interference is required hence,
the appeal may be rejected.
6. At the outset, before discussing the facts of the
present case, it would be appropriate to refer to the
observations of the Apex Court regarding the scope of
interference in acquittal appeals in the case of Chandrappa
& Ors. Vs. State of Karnataka reported in 2007 (4) SCC
415, wherein, the Apex Court has observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313, this
Court stated:
"While deciding an appeal against acquittal, the power of
the Appellate Court is no less than the power exercised
while hearing appeals against conviction. In both types of
appeals, the power exists to review the entire evidence.
However, one significant difference is that an order of
acquittal will not be interfered with, by an appellate court,
where the judgment of the trial court is based on evidence
and the view taken is reasonable and plausible. It will not
reverse the decision of the trial court merely because a
different view is possible. The appellate court will also bear
in mind that there is a presumption of innocence in favour
of the accused and the accused is entitled to get the benefit
of any doubt. Further if it decides to interfere, it should
assign reasons for differing with the decision of the trial
court".
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From the above decisions, in our considered view, the
following general principles regarding powers of 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 Code of Criminal Procedure, 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 emphasize 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 available to him under the fundamental
principle of criminal jurisprudence that every person
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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.
7. The law with regard to acquittal appeals is well
crystallized and in acquittal appeals, there is presumption
of innocence in favour of the accused and it has finally
culminated when a case ends in an acquittal. The learned
Trial Court has appreciated all the evidence and when the
learned Trial Court has come to a conclusion that the
prosecution has not proved the case beyond reasonable
doubts, the presumption of innocence in favour of the
accused gets strengthened. There is no inhibition to re
appreciate the evidence by the Appellate Court but if after
re appreciation, the view taken by the learned Trial Court
was a possible view, there is no reason for the Appellate
Court to interfere in the same.
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8. In light of the above settled principle of law, the
evidence of the prosecution is dissected and the
prosecution has examined PW1 - Manojsinh Natwarsinh
Chavda at Exh. 9 and the witness is the complainant who
has stated that after he received the information, he noted
the same in the Secret Information Register and informed
the Superintendent of Police, Bhavnagar about the
information. Two independent panch witnesses were called
and the primary panchnama was drawn between 13.50 to
14.20 hours. The complainant along with others had gone
to the house of the accused and the accused was informed
about the procedure under Section 50 of the NDPS Act and
the document produced at Exh. 10 was drawn, wherein, the
signature of the accused and the panch witnesses were
taken. The accused refused to be searched by any Gazetted
Officer or Magistrate and his consent was recorded in the
document produced at Exh. 11. The accused was also
informed about the procedure of Sections 42 and 43 of the
NDPS Act and his signature was taken on the document
produced at Exh. 12. The accused was asked to bring the
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two bags and he produced the two bags out of which one
was blackish bluish colour and the other was coffee cream
colour and on opening both the bags, green plants were
found and on smelling it was found to be Cannabis. The
accused did not have any license or permit for the
possession of the narcotic substance and the FSL Officer as
well as the witness with a wieghing scale was called by the
documents produced at Exh. 13 and Exh. 14. A mobile with
two SIM cards was found in the possession of the accused
which was seized and a railway ticket from Baroda to
Bhavnagar and an election card was also found. On
weighing the narcotic substance it was found to be 11.700
kgs and reserve sample of 50 grams was taken in a
transparent plastic jar and the entire muddamaal was
sealed and seized and the panchnama which is produced at
Exh. 17 was drawn. During the cross examination by the
learned advocate for the accused the witness has stated
that the information was received 9.30 am and till 12.15
pm, no report was sent to the Superior Officer. That no
signature of the Superintendent of Police was taken that
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the information was received and no signature was made in
any log book. The panch witnesses that were taken, were
earlier panch witnesses in other police cases and were
panch witnesses in many cases filed under the NDPS Act.
That when he went for the raid, he was in civil clothes and
the complaint was written at the spot but it is not
mentioned in the complaint that the complaint was written
at the spot. The complaint does not mention the time
during which the complaint was written and the time when
it ended and the document at Exh. 10 does not state the
time when it was written. The document does not state that
the accused was asked the question whether he wanted to
be searched by any other Gazetted Officer and the reply of
the accused is not mentioned and also it is not mentioned
that the accused was asked in the Hindi language. The
document at Exh. 11 does not state that the Hindi language
was used and the document at Exh. 12 does not state the
time when it was written. No signature of the accused was
taken on Exh. 12 and there is no evidence on record to
show that the accused was residing on rent in the
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premises. There were many houses surrounding the house
of the accused and no statements of any neighbors have
been recorded. In the seizure memo, there is no mention of
any muddamaal and the slip that is affixed on the
muddamaal do not have intact seals and it can be easily
opened. The complainant has categorically stated that he
did not go personally to file the complaint.
8.1 The prosecution has examined PW2 - Hemandas
Viasndas Jobanputra at Exh. 23 and the witness is the
panch witness who has stated that he was called to the
SOG Office on 07.05.2012 along with the other panch
witness Hanifbhai Musani. They were told that they have to
go for a raid and they were made to sit in a vehicle and the
panchnama was drawn. The witness has identified his
signature on the primary panchnama. That they had gone
to Phulsar, 25 Varia Plot to a house and the panch
witnesses were asked to stand outside and the police had
gone in the house and had seized two bags and told them
that it was ganja. There was a person in the house but the
witness has stated that he could not recognize that person.
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The panch witnesses sat till the writing work was done and
in his presence nothing was asked to the person who was
in the house. The police had seized the two bags and their
signatures were taken on the panchnama which is
produced at Exh. 24. The witness does not know whether
any other thing was seized from any person and as the
witness has not supported the case of the prosecution, has
been declared hostile and has been cross-examined at
length by the learned APP but nothing further to support
the case of the prosecution has come on record.
8.2 The prosecution has examined PW3 - Gighabhai
Govindbhai Sarvaiya at Exh. 26 and the witness was
working as a Head Constable at the SOG Office, Bhavnagar.
The witness has supported the case of the prosecution and
has stated that he had gone along with the Superior Officer
and others for the raid. During the cross-examination by
the learned advocate for the accused, the witness has
stated that he does not know who had done the sealing of
the muddamal and in his statement before the police, it is
not mentioned that the accused was asked whether he
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wanted to be searched by any other Gazetted Officer or
Magistrate.
8.3 The prosecution has examined PW4 - Vinodbhai
Savaldas at Exh. 28 and the witness has stated that he was
working at Navapura Road at the shop of Manubhai
Gathiyawala and on 07.05.2012 in the afternoon, the SOG
Police came in a Tata Sumo along with Police Constable -
Sureshbhai and asked him to take his weighing scale and
he had gone in the Tata Sumo to a room. There was one
person present named Naveenbhai and grass like
substance were lying and he was asked to weigh them. One
bag weighed 5.800 kg and the other bag weighed 5.700 kg
and 50 - 50 grams samples were taken from each bag. The
witness has identified the accused before the learned Trial
Court and has submitted and has produced the certificate
at Exh. 16. During the cross examination by the learned
advocate for the accused the witness has stated that the
shop of Manubhai Gathiyawala is situated outside of the
DSP Office and the SOG Office is just behind the shop. All
the SOG staff members come to his shop and know him
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and Police Constable Sureshbhai knows him personally and
as Sureshbhai called him, he came and sat in the vehicle.
That he does not know whose house it was and there were
6 to 7 policemen in plain clothes at that place. In the
document produced at Exh. 16, he has merely written the
weight and all the other details were written by someone
else.
8.4 The prosecution has examined PW5 - Sureshbhai
Karshanbhai Boriya at Exh. 29 and the witness was
working as a Police Constable at the SOG Office and he had
gone to call PW4 - Vinodbhai Savaldas to weigh the
narcotic substance. The witness has stated that he went to
the shop of Manubhai Gathiyawala and called Vinodbhai
with his weighing scale and had taken him to the place of
offence. During the cross examination by the learned
advocate for the accused the witness has stated that
Manubhai Gathiyawala's shop is near the SOG Office and
there are many shops near the DSP Office and other
persons with weighing scales would be available. That even
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at Akhlol Jakatnaka, many shops are situated and there
too they would find persons with weighing scales.
8.5 The prosecution has examined PW6 - Vijaykumar
Chelshankar Joshi at Exh. 30 and the witness is the PSO
who has registered the offence. During the cross
examination by the learned advocate for the accused the
witness has stated that he has registered the offence but he
has not met the complainant and two to three constables
had come with the accused, muddamaal and the complaint
but he does not know their names.
8.6 The prosecution has examined PW7 - Batukbhai
Dayaljibhai Thakkar at Exh. 33 and the witness is the
Investigating Officer and he has narrated the procedure
undertaken by him during investigation. During the cross
examination by the learned advocate for the accused the
witness has stated that all the documents and panchnama
were nil and the arrest memo is the first document which
would not have the Crime Register number mentioned but
in the present case when he got the documents the Crime
Register Number was already mentioned. That he has not
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seized any document to show that the accused was residing
on rent in the disputed suit property and in the documents
submitted by him, in all the mandatory and directory
documents, the time is not mentioned. It is also not
mentioned that the accused was made to understand in
Hindi language and there was no seal on the slip of the
sample. That in the document produced at Exh. 15 which is
the FSL report no Police Station was mentioned.
9. On minute appreciation of the entire evidence of the
prosecution, the main defence raised by the accused is
non-compliance of Section 42(1) and 42(2) of the NDPS Act.
Section 42(1) and 42(2) of the NDPS Act reads as under:
42. Power of entry, search, seizure and arrest without warrant
or authorisation.--
(l) Any such officer (being an officer superior in rank to a
peon, sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intellegence or any
other department of the Central Government including
para-military forces or armed forces as is empowered in
this behalf by general or special order by the Central
Government, or any such officer (being an officer superior
in rank to a peon, sepoy or constable) of the revenue,
drugs control, excise, police or any other department of a
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State Government as is empowered in this behalf by
general or special order of the State Government, if he has
reason to believe from personal knowledge or information
given by any person and taken down in writing that any
narcotic drug, or psychotropic substance, or controlled
substance in respect of which an offence punishable under
this Act has been committed or any document or other
article which may furnish evidence of the commission of
such offence or any illegally acquired property or any
document or other article which may furnish evidence of
holding any illegally acquired property which is liable for
seizure or freezing or forfeiture under Chapter VA of this
Act is kept or concealed in any building, conveyance or
enclosed place, may between sunrise and sunset -
(a) enter into and search any such building, conveyance
or place;
(b) in case of resistance, break open any door and
remove any obstacle to such entry;
(c) seize such drug or substance and all materials used
in the manufacture thereof and any other article and
any animal or conveyance which he has reason to
believe to be liable to confiscation under this Act and
any document or other article which he has reason to
believe may furnish evidence of the commission of any
offence punishable under this Act or furnish evidence
of holding any illegally acquired property which is liable
for seizure or freezing or forfeiture under Chapter VA of
this Act; and
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(d) detain and search, and, if he thinks proper, arrest
any person whom he has reason to believe to have
committed any offence punishable under this Act:
[Provided that in respect of holder of a licence for
manufacture of manufactured drugs or psychotropic
substances or controlled substances granted under
this Act or any rule or order made thereunder, such
power shall be exercised by an officer not below the
rank of sub-inspector:
Provided further that if such officer has reason to
believe that a search warrant or authorisation
cannot be obtained without affording opportunity for
the concealment of evidence or facility for the escape
of an offender, he may enter and search such
building, conveyance or enclosed place at any time
between sunset and sunrise after recording the
grounds of his belief.
(2) Where an officer takes down any information in writing
under sub-section (1) or records grounds for his belief
under the proviso thereto, he shall within seventy-two
hours send a copy thereof to his immediate official
superior.
9.1 In light of the above, if the evidence is appreciated, the
complainant - PW1 - Manojsinh Natwarsinh Chavda
examined at Exh. 9 has, during the cross-examination,
stated that he had received the secret information at 09.30
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in the morning but in the document produced at Exh. 21
which is the information given to the Superintendent of
Police, Bhavnagar, he has stated that he had received the
information on 07.05.2012 at 12.15 hours. Moreover, there
is no iota of evidence on record that the information was
actually received by the Superintendent of Police and it is
not the say of the complainant that he had informed the
Superintendent of Police on telephone or mobile phone
about the secret information that he had received. Hence,
there is a clear breach of Section 42(1) and 42(2) of the
NDPS Act.
9.2 In light of the above, it would be fit to refer to the
observations of the Apex Court in Karnail Singh v. State of
Haryana reported in 2009 8 SCC 539 in Para 17, wherein it
is observed as under:
17. In conclusion, what is to be noticed is Abdul Rashid
did not require literal compliance with the requirements of
Sections 42(1) and 42(2) nor did Sajan Abraham hold that
the requirements of Section 42(1) and 42(2) need not be
fulfilled at all. The effect of the two decisions was as follows
:
(a) The officer on receiving the information (of the nature
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referred to in Sub-section (1) of section 42) from any
person had to record it in writing in the concerned Register
and forthwith send a copy to his immediate official
superior, before proceeding to take action in terms of
clauses (a) to (d) of section 42(1).
(b) But if the information was received when the officer was
not in the police station, but while he was on the move
either on patrol duty or otherwise, either by mobile phone,
or other means, and the information calls for immediate
action and any delay would have resulted in the goods or
evidence being removed or destroyed, it would not be
feasible or practical to take down in writing the information
given to him, in such a situation, he could take action as
per clauses (a) to (d) of section 42(1) and thereafter, as
soon as it is practical, record the information in writing
and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of
Sections 42 (1) and 42(2) in regard to writing down the
information received and sending a copy thereof to the
superior officer, should normally precede the entry, search
and seizure by the officer. But in special circumstances
involving emergent situations, the recording of the
information in writing and sending a copy thereof to the
official superior may get postponed by a reasonable period,
that is after the search, entry and seizure. The question is
one of urgency and expediency.
(d) While total non-compliance of requirements of sub-
sections (1) and (2) of section 42 is impermissible, delayed
compliance with satisfactory explanation about the delay
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will be acceptable compliance of section 42. To illustrate, if
any delay may result in the accused escaping or the goods
or evidence being destroyed or removed, not recording in
writing the information received, before initiating action, or
non-sending a copy of such information to the official
superior forthwith, may not be treated as violation of
section 42. But if the information was received when the
police officer was in the police station with sufficient time
to take action, and if the police officer fails to record in
writing the information received, or fails to send a copy
thereof, to the official superior, then it will be a suspicious
circumstance being a clear violation of section 42 of the
Act. Similarly, where the police officer does not record the
information at all, and does not inform the official superior
at all, then also it will be a clear violation of section 42 of
the Act. Whether there is adequate or substantial
compliance with section 42 or not is a question of fact to be
decided in each case. The above position got strengthened
with the amendment to section 42 by Act 9 of 2001.
9.3 Moreover, if the evidence on record is appreciated, the
complainant has stated that the panch witnesses that were
called were panch witnesses in many cases and also were
panch witnesses in many other NDPS cases. Hence, the
independence of the panch witnesses is not proved.
Moreover, PW4 - Vinodbhai Sawaldas who was called to
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weigh the Cannabis by PW5 - Sureshbhai Karsanbhai
Boricha was working at the shop of Manubhai Gathiyawada
and his shop was just behind the SOG Office and was
known to the police. In the evidence, it has emerged that
there were many other people with weighing scales who
were available at the place where the raid had taken place
but for reasons best known to the complainant, PW4 -
Vinodbhai Sawaldas was called from near to the SOG
Office. It has also emerged on record that the accused was
arrested at 19.00 hours on 07.05.2012 and as per the
document produced at Exh. 31, which is the extract of the
Station Diary, the offence was registered at 21.00 hours as
Bhavnagar D Division Police Station II - C.R. No. 61 of 2012
but in the arrest memo, the C.R. Number is mentioned and
there is no explanation regarding this on record. In the
mandatory documents produced at Exhs. 10, 11, 12 and
13, the time is not mentioned and it has also emerged on
record that the accused could not understand the
vernacular language but there is nothing on record to
suggest that the mandatory procedure was explained to
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him in the language that was understood by him. There are
many discrepancies that have come on record and even the
seals that were affixed on the muddamaal were not properly
affixed and it has emerged on record that the seals could be
tampered with and they could be opened and closed in a
manner that the samples could be tampered with.
10. In view of the settled position of law in the decisions of
Chandrappa (supra) and Karnail Singh (supra), the learned
Trial Court has appreciated the entire evidence in proper
perspective and there does not appear to be any infirmity
and illegality in the impugned judgment and order of
acquittal. The learned Trial Court has appreciated all the
evidence and this Court is of the considered opinion that
the learned Trial Court was completely justified in
acquitting the accused of the charges leveled against them.
The findings recorded by the learned Trial Court are
absolutely just and proper and no illegality or infirmity has
been committed by the learned Trial Court and this Court is
in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by
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the learned Trial Court. This Court finds no reason to
interfere with the impugned judgment and order and the
present appeal is devoid of merits and resultantly, the same
is dismissed.
11. The impugned judgement and order of acquittal
passed by the learned Special Judge, Bhavnagar in Special
(NDPS) Case No. 5/2012 on 31.01.2013, is hereby
confirmed.
12. Bail bond stands cancelled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
SD/-
(S. V. PINTO,J)
VASIM S. SAIYED
