2026 Supreme(Guj) 1057
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SANJEEV J.THAKER, J.
State Of Gujarat - Appellant
Versus
Ganeshbhai Becharbhai Prajapati – Respondent
Criminal Appeal No. 632 of 2010
Decided On : 15-04-2026
For the Appellant : Mr Niraj Sharma, APP
For the Respondent: Mr N.P. Chaudhary, Mr Tushar Chaudhary
Appellate courts should not interfere with an acquittal unless the trial court’s decision is perverse, legally flawed, or ignores material evidence. Mandatory procedural safeguards in search operations must be strictly observed; failure to demonstrate such compliance undermines the prosecution's case and justifies an order of acquittal.
Headnote:(A) Criminal Procedure Code, 1973 - Section 378 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20(a) and 42(2) - Appeal against acquittal - Necessity of proving the case beyond reasonable doubt - Compliance with mandatory procedural provisions for search and seizure - Failure of prosecution to provide proof of intimation to superior officers regarding the search - Hostile testimony of independent witnesses leading to significant evidentiary gaps. (Paras 8.4, 8.14, 8.15)
(B) Appeal - Scope of interference - Appellate court is empowered to re-appreciate evidence, yet should not interfere with an order of acquittal unless the trial court's decision is found to be perverse, based on a misreading of evidence, or reflects a patent illegality. Interference is not warranted simply because another view is possible. (Paras 14, 15, 16)
Facts of the case:
The prosecuting authority challenged the acquittal of the respondent, who was originally charged with the illegal cultivation of a prohibited crop. The prosecution alleged that the recovery of the contraband was made following secret information and a subsequent raid. However, the prosecution's contentions were doubted by the trial court due to several factors, including the hostility of independent witnesses and lack of evidence regarding procedural compliance.
Findings of Court:
The court observed that the prosecution failed to establish compliance with the mandatory requirement of informing superior officers about the search operations. Furthermore, the documentary evidence produced contained inconsistencies, and the ownership of the specific land where the crop was allegedly found was not conclusively linked to the respondent. The prosecution failed to bridge the gaps in its chain of evidence.
Issues: Whether the mandatory statutory procedures for informing superior authorities were followed and whether the trial court's order of acquittal was perverse or legally unsustainable.
Ratio Decidendi: The court maintained that when an acquittal is based on a reasonable and plausible assessment of evidence, an appellate court should not substitute its own view. Strict adherence to mandatory procedural safeguards in the context of drug-related offenses is vital; the absence of proof of such compliance, coupled with substantive doubts regarding the recovery, necessitates the upholding of an acquittal.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. procedural background and summary of investigation. (Para 1 , 2 , 3 , 4) |
| 2. contentions of parties regarding acquittal. (Para 5 , 6 , 7) |
| 3. mandatory compliance with section 42(2) of ndps act. (Para 9 , 10) |
| 4. appellate limits in reviewing acquittal judgments. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19) |
JUDGMENT :
SANJEEV J.THAKER, J.
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 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.
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
| No. | Exhibit No. | Name of Witness | Date |
|---|---|---|---|
| 1 | 16 | Rajeshkumar Gajraraj Barot (Panch Witness for the Raid Panchnama) | 28/1/09 |
| 2 | 22 | Hasmukhbhai Lachhumal Gangwani (Second Panch Witness for the Raid) | 28/1/09 |
| 3 | 24 | Harichandbhai Ganeshbhai | 21/2/09 |
| 4 | 28 | Rameshbhai Kashiram Advatrav (Complainant) | 24/2/09 |
| 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 |
| 9 | 52 | Devendrakumar Navinchandra Dave (Scientific Officer) | 2/7/09 |
| 10 | 54 | Jaydeepsinh Veniji Chavda (T.K.M. / Investigating Officer) | 2/7/09 |
| 11 | 62 | Dharmabhai Kachrabhai | 31/7/09 |
Documentary Evidence
| No. | Exhibit No. | Description of Particulars | Date |
|---|---|---|---|
| 1 | 17 | Panchnama of the scene of the incident | 16/5/08 |
| 2 | 18 | Receipt of Muddamal (Case Property) Article No. A/1 | 16/5/08 |
| 3 | 19 | Receipt of Muddamal (Case Property) Article No. 1 | 16/5/08 |
| 4 | 20 | Receipt of Muddamal (Case Property) Article No. 2 | 16/5/08 |
| 5 | 21 | Seizure memo | 16/5/08 |
| 6 | 25 | Certificate regarding weight done at the place of incident | 16/5/08 |
| 7 | 26 | Letter regarding taking possession of the place | 16/5/08 |
| 8 | 29 | Letter under Section-42/52 of the N.D.P.S. Act | 16/5/08 |
| 9 | 30 | Consent letter | 16/5/08 |
| 10 | 31 | Letter to the Scientific Officer to remain present at the place on incident | 16/5/08 |
| 11 | 32 | Letter under N.D.P.S. Act Section-52(1) regarding arrest of the main accused | 16/5/08 |
| 12 | 33 | Information letter for search | 16/5/08 |
| 13 | 34 | Letter under Section-42(2)(1) of the NDPS Act regarding information to the accused | 16/5/08 |
| 14 | 35 | Letter under Cr.P.C. Section-160/42(2) regarding information to the accused | 16/5/08 |
| 15 | 36 | Complaint of the complainant | 16/5/08 |
| 16 | 37 | Copy of the letter sent to Police Banaskantha regarding successful raid | 16/5/08 |
| 17 | 38 | r | |