[Cites 13, Cited by 0]

Gujarat High Court

State Of Gujarat vs Aslam Anwarkhan Pathan on 18 March, 2026

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/CRIMINAL APPEAL NO. 1820 of 2008

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                                                          STATE OF GUJARAT
                                                                Versus
                                                      ASLAM ANWARKHAN PATHAN
                       ==========================================================
                       Appearance:
                       MS MEGHA CHITALIYA, APP for the Appellant(s) No. 1
                       NON BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No.
                       1
                       O I PATHAN(7684) for the Opponent(s)/Respondent(s) No. 1
                       ==========================================================

                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                            Date : 18/03/2026

                                                              JUDGMENT

1. Feeling aggrieved by and dissatisfied with the

judgment and order of acquittal dated 21.04.2008, passed by

the learned Additional Sessions Judge, Fast Track Court

No.1, Ahmedabad City, in Sessions (NDPS) Case No.123 of

2006, punishable under Section 8(C) read with 20(b) 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 the complainant - the

P.S.I. - M.R.Sharma, Reader, Office of the Deputy Police

Commissioner, Zone-VI, Ahmedabad, has received a secret

information that respondent-accused is dealing with illegal

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sale of Cannabis ('Ganja') in his house; therefore,

arrangement of two panchas was made and raid was carried

out in the presence of police party; the complainant, along

with the police party, has gone to the residence of

respondent-accused and identified themselves; the accused was

given an option, whether he wants to be searched in

presence of the Police Officer or any other Gazetted Officer

and as he was ready and willing to be searched before the

Police Officer, the search was carried out; it was found in

the search that the respondent was in conscious possession of

Ganja, weighing about 4.875 kgs. without any pass or permit

and accordingly, the same was recovered by drawing

panchanama; the samples were collected and rest was seized

for the purpose of investigation; therefore, the case was

registered against the respondents/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. 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.123 of

2006. The charge was framed against the accused person/s.

The accused pleaded not guilty and came to be tried.

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4.1 In order to bring home the charge, the prosecution

has examined 9 witnesses before the trial Court, which are

described in the impugned judgment, which are as under :

Sr. Prosecution Name of Prosecution Particulars Exh. No.

No. Witness No. Witness

Sagathiya Witness

Gohel Witness

Sharma

Upadhyay Officer

Parmar

Sandora Machine

Operator

Head

Waghela Person who

has carried

the

muddamal to

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FSL

Chaudhari Officer

4.2 The prosecution has produced 17 (sic.15)

documentary evidence before the trial Court, which are

described in the impugned judgment, which are as under :

                         Sr.No.                         Particulars                                    Exh. No.



                                    the information



                                    - M.R. Sharma







                                    NDPS Act



                                    NDPS Act



                                    the place of offence














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                                    Muddamal to FSL

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

concluded that the prosecution has failed to prove its case. It

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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 :

8.1 The prosecution has examined Rakeshbhai

Girishbhai Sagathiya as P.W.1, vide Exh.8. He was the panch

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witness of the panchanama of recovery of muddammal -

Cannabis (`Ganja'). The said panchanama is produced vide

Exh.25. The other witness of the said panchanama-

Rajeshbhai Kantibhai Gohel has been examined as P.W.2,

vide Exh.12. Both have turned hostile and have not

supported the case of the prosecution.

8.2 The prosecution has examined P.S.I. - Manojbhai

Ramchandra Sharma as P.W.3, vide Exh.13. In his deposition,

he has stated that as and when he got the said information,

the Police Commissioner `C' Zone No.6 informed the Police

Inspector - Shri Upadhyay of GIDC Police Station through

phone. In his cross-examination, he has admitted that Vatva

Police Station and Vatva GIDC Police Station, both, are

different and as and when he got the information, the Police Inspector at Kagadapith Police Station was present. He has,

in his cross-examination, also admitted that he does not have

any written instructions of the raid, which was carried out

as per the instructions of the Deputy Commissioner of Police.

He has admitted that if the offence is committed in the

jurisdiction of Vatva, the same has to be investigated by the

Vatva Police Station. He has also deposed that he, along

with other officers, had gone to Kagdapith Police Station to

apply a seal. In his deposition, he stated that he had used

the electric machine to weigh the ganja-contraband article,

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and he had applied the plug and wire to switch on the said

weighing machine.

8.3 The prosecution has thereafter examined Jyotindra

Amrutlal Upadhyay, raiding officer as P.W.4, at Exh.24, who

was a P.I. at GIDC Vatva Police Station. In his deposition,

he has admitted that he had not informed his higher officers.

The arrest memo is produced vide Exh.32.

8.4 The prosecution has examined Rakeshbhai Sonaji

Sandora as P.W.6, vide Exh.36, who is alleged to have

weighed the contraband article and he has turned hostile and

not supported the case of the prosecution.

8.5 The prosecution has examined Bharatsinh Chanduji Waghela, who had taken the sample to FSL Gandhinagar, as

P.W.8, vide Exh.39.

The Investigating Officer - Satishkumar Manilal

Chaudhary has been examined as P.W.9, vide Exh.41.

8.6 If the entire case of the prosecution is taken into

consideration, it is the case that as soon as he got the secret

information that the accused is dealing with contraband

(ganja) at his residence, which was situated at Vatva, Bibi

Talav, Near Darbargarh and he had informed his higher

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officer - Shri Trivedi, which is produced vide Exh.14, and

stated that the said information which is produced vide

Exh.14 was not in his handwriting, but the handwriting of

Babubhai, Constable. The prosecution has not examined the

said Constable-Babubhai, who has intimated the higher

officers.

The prosecution has also not given any details of

inward and outward number of the said intimation that was

given to the higher officers as per Section 42(2) of the NDPS

Act. The prosecution has also not given any justification for

verification of the place of offence and it was not the case of

the prosecution that the said 'ganja' was to be transferred as

the information, according to the prosecution, was that the

accused was selling 'ganja' from a particular place. The panch

witnesses have turned hostile and have not supported the case of the prosecution.

8.7 With respect to the evidence of the raiding party,

it transpires that in the further statement of the accused, he

has pleaded not guilty and has stated that he does not

reside in the said premises where the raid was carried on;

and that there was no light and water facility at the said

place. The fact remains that it is essentially required that he

alone was a person, from whose possession, the contraband

was recovered. Moreover, in the present case, the panchas

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have not supported the prosecution's case. Whereas, it is the

case of the prosecution that the muddammal was recovered

from the residence of the accused, but the prosecution ought

to have produced evidence as to the ownership and possession

of the house of the accused. The evidence could have been

availed as to who was the owner of the said premises and

the prosecution could have proved beyond doubt that the

house raided is of the ownership and occupancy of the

accused and therefore, by mere presence of the person in a

house would not be sufficient to draw inference against that

person in such a serious offence and it would not be safe to

presume or assume that the accused was there. He may be

either the occupant or the owner of the said house. The

Court has held, in the present case, that the prosecution has

miserably failed to establish the ownership and the possession of the premises, from which, the contraband was seized as

belonging to the accused. The prosecution has also not

produced any independent evidence to establish that the

accused was the owner of the property in question by

producing document or by examining neighbours nor

statement has been made by the prosecution that inspite of

the efforts taken by them, they could not produce the

documents or examine the neighbours to prove the ownership

of the property, from which the contraband was recovered.

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8.8 If the factor of seizure and sealing of contraband

is taken into consideration, there are lot of contradictions in

the testimony of the witnesses of the prosecution. The person

who has weighed the said contraband has not supported the

case of the prosecution and has turned hostile. There are

also contradictions as to whether the said weighing machine

was electronic or electric. Moreover, it also transpires from

the evidence of P.W.3 - Manojbhai Ramchandra Sharma and

P.W.4 - Jyotindra Amrutlal Upadhyay that Vatva Police

Station and Vatva GIDC Police Station are different Police

Stations and the information that was received was within

the jurisdiction of Vatva GIDC Police Station. It transpires

that the control room at Vatva GIDC Police Station was not

informed. The statement of the owner of the farm has also

not been taken by the prosecution nor the map of the place of offence has been done by the prosecution.

8.9 Moreover, the prosecution has also not been able

to prove as to whether there is a complaint of Section 57 of

the NDPS Act and whether the arrest and seizure was made

under the Act within 48 hours after the said arrest or

seizure. A full report of such seizure has to be made to the

immediate official superior. The fact remains that P.W.4 -

Jyotindra Amrutlal Upadhyay, a Raiding Officer, the P.I. at

GIDC, Vatva Police Station, has, in his deposition at Exh.24,

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stated that after the raid, he went to his police station and

has not informed his higher officers in writing.

8.10 Moreover, if the Muddammal Receipt No.46 of

2006 dated 05.02.2006 is seen, the first case register No.93 of

2006 is dated 06.02.2006 and Muddammal Receipt No.45 of

2006 is dated 06.02.2006. Therefore, the prosecution has not

been able to prove as to how and when was the muddammal

taken to the FSL for report and when was the muddammal

given to them to be supplied to the FSL. The prosecution

has not been able to prove as to how Muddammal Receipt

No.46 of 2006 is dated 05.02.2006 and Muddammal Receipt

just above the said receipt No.45 of 2006 is dated 06.02.2006.

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

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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

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

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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.

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

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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."

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:

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"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.

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

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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."

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

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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 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

view/finding of the learned trial Court leading to the