[Cites 19, Cited by 0]

Gujarat High Court

State Of Gujarat vs Bhagwanbhai Dahyabhai Thakkar Owner Of ... on 29 April, 2026

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                         R/CR.A/1521/2008                                              CAV JUDGMENT DATED: 29/04/2026

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                                                                                     Reserved On : 09/04/2026
                                                                                   Pronounced On : 29/04/2026

                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/CRIMINAL APPEAL NO. 1521 of 2008

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                                           STATE OF GUJARAT
                                                 Versus
                         BHAGWANBHAI DAHYABHAI THAKKAR OWNER OF BHAGWATI BOOK
                                                 STORE
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                       Appearance:
                       MR. TIRTHRAJ PANDAYA, APP for the Appellant(s) No. 1
                       MR ABHAYKUMAR P SHAH(3093) for the Opponent(s)/Respondent(s) No. 1
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                         CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER


                                                             CAV JUDGMENT

1. Feeling aggrieved by and dissatisfied with the

judgment and order of acquittal dated 31.12.2007, passed by

the learned Chief Judicial Magistrate, Patan in Criminal Case

No. 2884/2001, for the offences punishable under Sections

18(C), 18(A)(1), 18(A)(6) and 18(A) of the Drugs and

Cosmetics Act, 1940, 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 lower Court is that the Drug Inspector, Shri

Pradip Govindlal Doshi, received secret information that the

respondent was selling Oxitocin Injections without any licence

or permission. Acting on this information, a raid was

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conducted at the premises of the respondent, M/s. Bhagwati

Book Stores, near Bhagwada Darwaja, Patan, where the

respondent was found in possession of injections. The seized

samples were sent for analysis, and as per the report of the

Public Analyst, the injections were found to be substandard.

The respondent failed to produce any valid licence, bills, or

vouchers for the said drugs, and therefore, the complaint was

lodged against the respondent-accused.

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. The charge

was framed against the accused person/s. The accused

pleaded not guilty and came to be tried.

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

has examined 3 witnesses and also produced 16 documentary

evidence before the Trial Court, which are described in the

impugned judgment as under:

Oral evidences

Sr. Exh.

                                              Designation Name of Witness
                       No.         No.
                                                               Pradip Singh Govind Singh
                       1           16         Complainant
                                                               Doshi
                                              Panch            Vishnubhai Mafatlal

                                              Witness          Thakkar
                                              Panch            Vipulbhai Dalpatbhai

                                              Witness          Thakkar






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                       Documentary evidences

                       Sr.
                                 Exh.No. Description
                       No.

Order from the Commissioner of Food and Drug Control 1 33 Administration to initiate legal proceedings against the accused.

2 32 Copy of the Gazette.

3 18 Appointment order of the Complainant. 4 19 Central Government order.

5 20 Gazette notification determining the area/jurisdiction. 6 21 Intimation Form No. 17 provided to the accused. 7 22 Receipt for the price paid to the accused. 8 23 Copy of Form No. 16 regarding the seizure of medicines. 9 24 Statement of the accused.

Registration certificate of the shop under the Shops and 10 25 Establishments Act.

Application and order copy for the custody of seized 11 26 medicines.

12 27 Copy of the letter sent for sample analysis. 13 28 Panchnama (Official record of proceedings). 14 29 Analysis Report.

15 30 Letter informing the accused of the Analysis Report 16 31 R.P.A.D. (Registered Post) acknowledgment receipt.

5. After hearing both the parties and after analysis

of evidence adduced by the prosecution, the learned trial

Judge acquitted the accused for the offences for which they

were charged, by holding that the prosecution has failed to

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prove the case beyond 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 true sense and

perspective; and that the trial Court has committed 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 come to the

conclusion 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 reasonable doubt that

the accused had committed an 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

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accused. The trial Court has taken possible view as the

prosecution has failed to prove its case beyond 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. I have heard the submissions made by the learned

advocates for the respective parties and also gone through

the oral and documentary evidence, independently and

dispassionately, and considering the impugned judgment and

order of the trial Court, the following aspects weighed with

the Court:

8.1. It is a case of the prosecution that the accused had

stocked Oxitocin Injections for sale, and had not kept a record of

its purchase, and also did not have the license to sell the same,

and as the said information was received by the Drug Inspector,

a raid was conducted in presence of the panch witness on

28.05.2000, wherein five boxes of Oxitocin Injections were found

in the said raid, and therefore, a complaint for the alleged

breach of Sections 18(C), 18(A)(1), 18(A)(6) and 18(A) of the

Drugs and Cosmetics Act, 1940, which is punishable under

Sections 27 and 28, was filed. The samples were taken as per

Section 23 of the Drugs and Cosmetics Act, 1940.

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8.2. The prosecution has examined the complainant that is

the Drug Inspector as PW- 1 vide Exh-16. In his cross-

examination, he stated that he has complied with the provisions

of the Drugs and Cosmetics Act, 1940 with respect to collecting

the sample, purchasing after tendering the fair price thereof, and

taking a written acknowledgment. The said written

acknowledgment is produced vide Exh-22, and the samples have

been taken as per provisions of Section 23(4) of the Drugs and

Cosmetics Act, 1940 read with provisions of the Drugs Rules,

1945, and had applied a seal, and had paid an amount Rs. 220/-

in cash, and taken the receipt thereof, as per Form-17(A) of the

Drugs Rules 1945. In the cross-examination, he has stated that

in Form-18(3), copies were taken and one seal was placed by

him.

8.3. It is the case of the accused that as per Section

25(4), in view of the fact that the accused was intended to

adduce evidence in contravention of the report signed by the

Government Analyst, which is produced vide Exh- 29, and as no

opportunity was given to him to send the sample for test or

analysis to the Central Drugs Laboratory, which shall have to

test or analyse the report in writing signed by the authority of

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the Director of Central Drugs Laboratory. But the fact remains

that as per the record, which is produced vide Exh-30 and 31,

the said report was already was intimated on 21.04.2001, which

can be proved from the document produced vide Exhibit-30 and

31. Thereby, the prosecution has proved that on the receipt of

the said report, one copy of the report was given to the

respondent, and if the report produced vide Exh-30 is taken into

consideration, the said report also states that the respondent has

to inform from whom the said Oxitocin Injections has been

purchased, and to produce the bill from where they have

purchased the same. But the respondent did not reply to the

same nor has the respondent exercised the powers under Section

25(3) of the Drugs and Cosmetics Act, 1940 wherein, within 28

days of the receipt of the copy of the report which is produced

vide Exhibit 30 had to notify in writing to the inspector, that

he intends to adduce evidence in contravention of the report. In

view of the same fact, no such intimation was given by the

respondent in the question of sending the said sample to the

Central Drugs Laboratory would not arise.

8.4. Moreover, the fact that the respondent has already

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taken the fair price for selling the same, and a receipt to that

effect has been produced vide Exh- 21, which is stated in Form-

A, that they have received an amount of Rs.220/-. The question

that the said Oxitocin Injections was not for sale cannot be a

ground for granting acquittal. In view of the fact that there is a

provision under the Act that, if the respondent refuses to take

the fair price, the receipt could be issued under Provisions of

56(A) of the Drugs Rules 1945. In view of the same the

respondent has already taken the fair price, it cannot be said

that the respondent was not selling the same.

8.5. In the present case, the prosecution has failed to

prove that the said stock of Oxitocin Injections was intended to

be sold, and as per law, mere possession of drugs is not

sufficient unless, there is evidence to show that they are

intended for sale.

8.6. The prosecution has also failed to produce any

evidence with regard to the actual participation of the accused

with respect to the fact that, the accused was selling the same

or was stocking them for sale.

8.7. There is no evidence to show that Oxitocin Injections

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were obtained from the owner of the store, and were exhibited

in a manner to attract customers for purchasing them.

8.8 The learned advocate for the respondent has relied

on the Judgment reported in the AIR 1979 SC Page 564, more

particularly "Para-4" which reads as under;

"It was contended by Mr. Singh that in order

to fall within the ambit of this section the

accused must manufacture the drugs for sale

or stock or exhibit for sale or distribute the

same. There is no evidence in this case to

show that the appellant had any shop or that

he was a distributing agent. All that has been

shown is that the tablets concerned were

recovered from his possession. It was urged

that possession simpliciter of the tablets of

any quantity whatsoever would not fall within

the mischief of S. 27 of the Act. On an

interpretation of S. 27, it seems to us that

the argument of Mr. Singh is well founded

and must prevail. The words used in S. 27,

namely, "manufacture for sale, sells," have a

comma after each clause but there is no

comma after the clause "stocks or exhibits for

sale." Thus the section postulates three

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separate categories of cases and no other: (1)

manufacture for sale; (2) actual sale; (3)

stocking or exhibiting for sale or distribution

of any drugs. The absence of any comma after

the word "stocks" clearly indicates that the

clause "stocks or exhibits for sale" is one

indivisible whole and it contemplates not

merely stocking the drugs but stocking the

drugs for the purpose of sale and unless all

the ingredients of this category are satisfied

S. 27 of the Act would not be attracted. In

the present case there is no evidence to show

that the appellant had either got these tablets

for sale or was selling them or had stocked

them for sale. Mr. Khanna appearing for the

State, however, contended that the word

"stock" used in section is wide enough to

include the possession of a person with the

tablets and where such a person is in the

possession of tablets of a very huge quantity,

a presumption should be drawn that they

were meant for sale or for distribution. In our

opinion, the contention is wholly untenable

and must be rejected. The interpretation

sought to be placed by Shri Khanna does not

flow from a true and proper interpretation of

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S. 27. We, therefore, hold that before a person

can be liable for prosecution or conviction

under S. 27(a)(i)(ii) read with Section 18(c) of

the Act, it must be proved by the prosecution

affirmatively that he was manufacturing the

drugs for sale or was selling the same or had

stocked them or exhibited the articles for sale.

The possession simpliciter of the articles does

not appear to be punishable under any of the

provisions of the Act. If, therefore, the

essential ingredients of S. 27 are not satisfied

the plea of guilty cannot lead the Court to

convict the appellant."

Therefore, before a person can be liable for prosecution

under Section 27 read with Section 18 of the Drugs and

Cosmetics Act, 1940, it has to be proved by the prosecution

affirmatively, that the accused was selling the same or had

stocked same or was exhibiting the same for sale. The mere

possession simpliciter of the article does not appear to be

punishable under any of the provisions of the Act.

8.9. Moreover, the other factor which has also been taken

into consideration by the Court of learned Chief Judicial

Magistrate, Patan is that, if the evidence of the complainant is

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taken into consideration, the complainant in his evidence, vide

Exh-16, has specifically stated that he had placed a seal while

sending the same for analysis, and if the panchanama, which is

produced vide Exh-28, is taken into consideration also states,

that a seal was placed underside of each box, and thereafter,

was sent for analysis, and if the certificate of test by

Government Analyst under Section 25(1) of the Drugs and

Cosmetics Act, 1940, which is produced vide Exh-29 is taken

into consideration, which states of four red seals of wax.

Therefore, there is a contradiction in the way the samples were

sent for analysis.

8.10. The prosecution has examined Vishnubhai Thakkar, as

PW-2 vide Exhibit-42, who was the panch witness with respect

to the seal and sampling. The panchanama of which is produced

vide Exhibit-28, he has not supported the case of the

prosecution, and has turned hostile.

8.11. The prosecution has thereafter examined Vipulbhai

Thakkar as PW-3 vide Exh-43, who was also the panch witness

of the panchanama produced vide Exh-28. He has also turned

hostile, and has not supported the case of the prosecution.

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8.12. The Trial Court has taken into consideration the fact

that the prosecution has failed to prove that the samples were

sent to the Government Analyst for the report, were the same

that were sealed. In view of the fact that the panchnama

produced vide Exh-28, and also the deposition of the complainant

states that one seal was applied, and the report of the analyst

produced vide Exh-29, states that four seals of the wax were

applied. The prosecution has also not been able to prove that

the accused had stored the same Oxitocin Injections for sale.

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

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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

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

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discussion of evidence at length is not necessary.

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

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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. 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

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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."

17. 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."

16. 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.

17. 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