[Cites 20, Cited by 0]

Gujarat High Court

State Of Gujarat vs Ganeshbhai Becharbhai Prajapati on 15 April, 2026

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                           R/CR.A/632/2010                                            CAV JUDGMENT DATED: 15/04/2026

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                                                                                  Reserved On   : 30/03/2026
                                                                                  Pronounced On : 15/04/2026

                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/CRIMINAL APPEAL NO. 632 of 2010

                      ==========================================================
                                                    STATE OF GUJARAT
                                                          Versus
                                             GANESHBHAI BECHARBHAI PRAJAPATI
                      ==========================================================
                      Appearance:
                      MR NIRAJ SHARMA, APP for the Appellant(s) No. 1
                      MR N P CHAUDHARY(3980) for the Opponent(s)/Respondent(s) No. 1
                      MR TUSHAR CHAUDHARY(5316) 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 25.11.2009, passed by

the learned Special Judge, Palanpur, Banaskantha in Special

(NDPS) Case No.114 of 2008, punishable under Section 20(a)

of The Narcotic Drugs and Psychotropic Substances Act, 1985

(for short `NDPS' Act), 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 Sessions Court is that while the complainant

police officer was on patrolling duty along with other police

personnel, he received secret information that the accused

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was allegedly storing and dealing in contraband substance

from his residence. Acting upon the said information, the

police party proceeded to the spot and, after following the

necessary procedure, carried out a search in the presence of

panch witnesses. During the search, contraband substance

alleged to be ganja was found from the premises of the

accused, kept in different packets/containers. The muddamal

was weighed, samples were drawn and sealed, and the

remaining quantity was also sealed in accordance with

procedure. Thereafter, the accused came to be apprehended

and necessary investigation was undertaken.

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. Since the

offence alleged against the accused person/s was exclusively

triable by the Court of Sessions, the learned Magistrate

committed the case to the Sessions Court concerned, where it

came to be registered as Sessions (NDPS) Case No.114 of

2008. The charge was framed against the accused person/s.

The accused pleaded not guilty and came to be tried.

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4. In order to bring home the charge, the prosecution

has examined 11 witnesses and 28 document evidences before

the trial Court, which are described in the impugned

judgment, which are as under :

Oral Evidence

Exhibit No. Name of Witness Date No.

Rajeshkumar Gajraraj Barot (Panch 1 16 28/1/09 Witness for the Raid Panchnama)

Hasmukhbhai Lachhumal Gangwani 2 22 28/1/09 (Second Panch Witness for the Raid)

3 24 Harichandbhai Ganeshbhai 21/2/09

Rameshbhai Kashiram Advatrav 4 28 24/2/09 (Complainant)

5 40 Saiyad Ali Alihussain Sunasara 24/2/09

6 43 Mahendrabhai Shankarbhai 18/3/09

7 48 P.S.O. Varsangji Lakhaji Chauhan 2/7/09

8 50 Meruji Savdanji Chauhan 2/7/09

Devendrakumar Navinchandra Dave 9 52 2/7/09 (Scientific Officer)

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Exhibit No. Name of Witness Date No.

Jaydeepsinh Veniji Chavda (T.K.M. / 10 54 2/7/09 Investigating Officer)

11 62 Dharmabhai Kachrabhai 31/7/09

Documentary Evidence

Exhibit No. Description of Particulars Date No. Panchnama of the scene of the 1 17 16/5/08 incident

Receipt of Muddamal (Case Property) 2 18 16/5/08 Article No. A/1

Receipt of Muddamal (Case Property) 3 19 16/5/08

Receipt of Muddamal (Case Property) 4 20 16/5/08

5 21 Seizure memo 16/5/08

Certificate regarding weight done at 6 25 16/5/08 the place of incident

7 26 Letter regarding taking possession of 16/5/08

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Exhibit No. Description of Particulars Date No. the place

Letter under Section-42/52 of the 8 29 16/5/08 N.D.P.S. Act

9 30 Consent letter 16/5/08

Letter to the Scientific Officer to

10 31 remain present at the place on 16/5/08

incident

Letter under N.D.P.S. Act Section-52(1) 11 32 16/5/08 regarding arrest of the main accused

12 33 Information letter for search 16/5/08

Letter under Section-42(2)(1) of the

13 34 NDPS Act regarding information to the 16/5/08

accused

Letter under Cr.P.C. Section-160/42(2) 14 35 16/5/08 regarding information to the accused

15 36 Complaint of the complainant 16/5/08

Copy of the letter sent to Police 16 37 16/5/08 Banaskantha regarding successful raid

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Exhibit No. Description of Particulars Date No. 17 38 report regarding Muddamal sent 17/5/08

Extract of the Village Form No. 7/12

18 41, 42 for Pirojpur Taluka (Land Records) for 17/5/08

survey nos.46, 49 paiki 3

Extract of the Muddamal (Case 19 44 17/5/08 Property) Register

20 49 Special Report of the offence 17/5/08

F.S.L. Gandhinagar report regarding 21 51 17/5/08 Muddamal analysis received

Preliminary report regarding the 22 53 16/5/08 vehicle

23 55 Wireless Message 16/5/08

Yadi given of survey numbers to 24 56 17/5/08 Mamlatdar Palanpur

25 57 Yadi wirtten for FSL Muddamal report 24/5/08

Letter from FSL sent to the Gujarat 26 58 18/7/08 State Transport for verification

27 59 F.S.L. Gandhinagar Muddamal 15/7/08

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Exhibit No. Description of Particulars Date No. Examination Report

F.S.L. Gandhinagar Chemical Analysis 28 60 15/7/08 Report

5. After hearing both the parties and after analysis

of evidence adduced by the prosecution, the learned trial

Judge acquitted the accused of the offences for which the

charge was framed, by holding that the prosecution had

failed to prove the case beyond a 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 a true sense

and perspective; and that the trial Court has committed an

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

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concluded 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 a reasonable doubt that

the accused had committed the 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

accused. The trial Court has taken a possible view as the

prosecution has failed to prove its case beyond a 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. In the aforesaid background, considering the oral

as well as documentary evidence on record, independently and

dispassionately and considering the impugned judgment and

order of the trial Court, the following aspects weighed with

the Court :

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8.1. The case of the prosecution is mainly based on the

complaint that has been filed vide exhibit 36 dated

16.05.2008, that in view of the information received that the

accused is cultivating Cannabis ('Ganja') crop, The Police

Constable Dharmabhai Kachrabhai was informed to call panch

and thereafter two panch Rajeshkumar Barot and

Hasmukhbhai Lachumal Rangwani were called and the

complainant along with the panch witnesses reached the field

of the accused and on asking his name, he informed his

name as Ganeshbhai Becharbhai Prajapati and he was

informed about the purpose of their visit and on the

information that was received, the raid was conducted. The

accused was also asked whether he wants any gazetted

officer or a magistrate to be present for investigation and

thereafter started the raid.

8.2. The accused willingly agreed to cooperate and thereafter,

in the raid, 29 crops of Cannabis ('Ganja') were found and a

complaint to that effect was registered, which is produced

vide exhibit 36.

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8.3. The recovery of mudamal is produced vide exhibit-17 and

the members of the raiding party and the persons who were

present at the time when the said arrest was conducted and

the mudamal was recovered, have been examined as P.W.1-

Rajesh Barot vide exhibit-16 and Hasmukhbhai Gangvani vide

exhibit-22, both have turned hostile and have not supported

the case of the prosecution. The person who had weighed the

said mudamal Harshadbhai has been examined as P.W.3 vide

exhibit-24. The certificate to that effect is issued, which is

produced vide exhibit-25. The letter written by the police

officer to him is produced vide exhibit 26.

8.4. The LCB P.S.I, has been examined vide exhibit-28-

Ramesh Kashiram Dattaram. In his deposition, he has stated

that he had received the information on telephone and after

getting the said information, he had noted the said

information in the register and in a sealed envelope, he had

sent the same to his higher officers through a personnel. The

fact remains that though the said letter is produced vide

exhibit-34, but there is neither any acknowledgment of the

the higher officers or the said higher officers have stated

that they have received the said information, which is

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produced vide exhibit-34. Moreover, the officer who was

entrusted the said work of delivering the envelope to the

higher officer has not been examined.

8.5. The prosecution has placed on record vide exhibit-34, the

said intimation that has been alleged to have been sent

under Section 42(2) of the of the NDPS Act, the said letter

states to be Javak no.9 of 2008, Police Station earlier and

the same is altered it can be read that before alteration the

number can be read as Javak. no.100 of 2008 and the no.100

has been altered and in place of 100, Javak number 9 has

been stated in Exhibit 34.

8.6. The said witness has stated that the said crops were

found in survey no.46/49 of the accused and states that the

said property belongs to the accused. He has also stated that

the list that was provided to the Police Officer does not

contain the letter, which is produced vide exhibit-34. The

information that he has received with respect to the alleged

offence has been noted in the register vide exhibit-29. He has

also admitted that there is no Javak number to the said

document produced vide exhibit-29. With respect to the place

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of offence, the said witness has also stated that he is not

aware as to how many portions/ partition had taken place of

the said field. He had also not gone through the 7/12 extract

of the said property at the time of raid. He has stated that

the place where the raid had taken place had irrigation

facility. He has also stated that he had not taken statement

of the neighbouring owners and he is also not aware as to

the description of survey numbers of the neighbouring place,

where the offence had taken place.

8.7. The prosecution has thereafter examined as P.W. 5-

Saiyad Ali Sansara vide exhibit-40. He was the talati at the

relevant point of time and as per his deposition, in the 8A

and 7/12 extracts, the name of accused is stated to be the

owner in 46, 49 paiki 3 and the certified copy of 8A and

7/12 extracts was produced vide exhibits 41 and 42 and the

occupier of the said premises is stated to be the accused. In

his cross-examination, he has also stated that in the

document produced vide exhibit-42, it has been stated that

there was no irrigation facility in the said property.

8.8. The prosecution has failed to prove that in the field, 46,

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49/3, the crop Cannabis ('Ganja') was being cultivated and

that the same was being cultivated by the accused.

8.9. The writer head of Police Station, Mahendrabhai

Shankarbhai has been examined as P.W.6 vide exhibit-43. He

has recorded the muddamal in the register produced vide

exhibit-44.

8.10. The prosecution has thereafter examined P.W.7

Varsangji Chauhan as P.W.7 vide exhibit-48. He is the Police

Officer who had registered the complaint and recorded the

muddamal and forwarded to the investigating officer.

8.11. The prosecution has thereafter examined as P.W.8-

Meruji Chauhan, who had issued the receipt given by F.S.L.

vide exhibit-51. If exhibit-51 is taken into consideration, the

same states in the subject that the same is with respect to

Criminal Case no.3069 of 2008 and the sample which has

been sent is with respect to Criminal Case no.3068 of 2008.

The fact remains that it has come on record that on the said

date, two offences have been registered at different places,

i.e. Criminal Case No.3069 of 2008 and Criminal Case

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no.3068 of 2008.

8.12. The prosecution has thereafter examined, the Scientific

Officer, FSL at Palanpur. The Investigating Officer who

received the FSL report-Jaydeep Singh Chawda has been

examined as P.W.10 vide exhibit-54. In his cross-examination,

he has admitted that he had received the revenue records for

property situated at survey no.46 and 49 paiki 3. He has not

investigated that in survey no.46 and 49, there were how

many plots or division. He also states that in paper that he

received, it has been stated that in the field in which the

said contraband was cultivated, had facility of irrigation and

on his visit also, he had seen that there was a facility of

irrigation in the said field. He had also taken statements

from the occupiers of the surrounding property. He had not

confirmed as to in which field there was irrigation facility.

He has also admitted that in survey nos.46 and 49 paiki 1,

there was a well and irrigation facility and that in

investigation, he had found that survey nos.46 plus 49 paiki

1 field was owned by Tulsibhai Kalubhai.

8.13. The prosecution has also examined P.W.11, Dharmabhai,

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Kachrabhai, who was the police constable on 16.05.2008 and

was part of the raiding party.

8.14. Moreover, the prosecution has not produced any witness,

who has been brought by the prosecution as the superior

officer, to show that he has received a copy of the

intimation, and therefore, in absence of any material to show

compliance of the provisions of Section 42(2) of the NDPS

Act, the Court below has rightly passed the order of

acquittal.

8.15. In the present case, there is violation of mandatory

provisions of Section 42(2) of the NDPS Act and the

prosecution has not examined any witness to prove that the

information is sent to the higher officer/s.

8.16. This Court has considered the judgment in the case of

Rajinder Singh V/s State of Haryana reported in 2011(8) SCC

130, wherein the Court, after taking into consideration the

judgment of Karnail Singh V/s State of Haryana reported in

2009(8) SCC 539, has held that while non-compliance with

requirements of sub-section (1) and (2) of Section 42 of the

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Act is impermissible, delayed compliance with satisfactory

explanation about the delay will be acceptable, but in the

present case, it is clear from the record that there was

complete non-compliance of the provisions of Section 42(2) of

the Act, which vitiates the conviction.

8.17. Moreover, the case of the prosecution states that the

crop was cultivated in the property that belonged to the

accused, but the prosecution ought to have produced evidence

as to the ownership and possession of the property that

belongs to the accused, though the evidence states that the

place where the offence had taken place had irrigation

facility, but the fact remains that from the documentary

evidence produced on record, more particularly, the 7/12

extract produced vide exhibit-42, states that, there was no

irrigation facility in the property survey number 46 and 49

Paiki 3, which is stated to be belonging to the accused and

the irrigation facility is stated to be in 46 and 49 Paiki 1,

which belongs to the one Tulsibhai, who is not an accused.

The evidence could have been availed as to who was the

owner of the said premises.

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8.18. Moreover, the prosecution has also not been able to

produce the acknowledgment and or evidence to show that

there is a compliance of Section 42(2) of the NDPS Act.

Moreover in exhibit-34, there is alteration in the jawak

number, whereas initially the jawak number was stated to be

100 of 2008 and thereafter it has been altered to 9 of 2008.

Neither the officer who has received exhibit 34 has been

examined, nor the officer, who was entrusted the said copy to

be served to the higher officer has been examined by the

prosecution.

8.19. Moreover, till the chargesheet was framed, it has been

admitted that the said letter which is produced vide exhibit-

34 was not given to the officer. There is no evidence to show

that the premises i.e. survey nos.46, 49 Paiki 1, which has

irrigation facility belongs to the accused and the fact that,

when search was effected, after information was received, the

same was bound to reduce the same in writing and comply

with the procedure i.e. described under 42(2) of the NDPS

Act and the fact that on the said date, two different offences

were registered at the police station being criminal case

no.3068 of 2008 and 3069 of 2008 and the present case

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pertains to criminal case no.3069 of 2008 and the said

document produced vide exhibit-51 states that only one parcel

was sent. The receipt was issued by the FSL was for

criminal case no.3068 of 2008. Therefore, the prosecution has

also not been able to prove the sample that was sent to the

FSL was of the present case.

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

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

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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

discussion of evidence at length is not necessary.

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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."

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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 review, reappreciate and reconsider the evidence upon

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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

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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."

16. 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

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available on record."

17. 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.

18. 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