STATE OF GUJARAT vs ANVARMIYA @ ANVAR DADHI BERA MUNNA MIYA SHAIKH

R/CR.A/2457/2009 (GJHC240419612009) JUDGMENT DATED: 02/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2457 of 2009

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
==========================================
Approved for Reporting Yes No
√
==========================================
STATE OF GUJARAT
Versus
ANVARMIYA @ ANVAR DADHI BERA MUNNA MIYA SHAIKH & ORS.
==========================================
Appearance:
MS JIRGA JHAVERI APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 3
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s)
No. 2
MR VO JOSHI(5883) for the Opponent(s)/Respondent(s) No. 1
RULE UNSERVED for the Opponent(s)/Respondent(s) No. 3
==========================================
CORAM: HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

Date : 02/09/2026

ORAL JUDGMENT
1. The appellant - State of Gujarat has preferred this appeal under
Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the
th
judgment and order dated 27.08.2009 passed by the learned 4
Additional District Judge, Vadodara (hereinafter be referred to as “the
trial Court”) in N.D.P.S. Case No.1 of 2009, whereby the trial Court has
acquitted the original accused (respondents herein) from the offences
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punishable under Sections 20(b) and 29 etc of the Narcotic Drugs and
Psychotropic Substances Act, 1985 [hereinafter be referred to as “the
NDPS Act”].
2. Brief facts of the present case are that Head Constable
Ranjitsinh Chhadrasingh, who was serving in the D.C.B. North Striking
Force, received information from his private informant on 30.11.2008
that one Anwar alias Anwar Dadhi, having an iron cabin situated
beside the Gujarati Primary School in the Hathikhana area, was selling
charas and ganja. Upon verifying the said information, it was found
that the sale of charas and ganja was in progress. Therefore, he gave
written information in this regard to the D.C.P. and the Deputy
Commissioner of Police, Vadodara City. Thereafter, A.C.P. Baranda
and P.S.I. Alsika, along with panch witnesses and police staff,
conducted a raid. During the raid, approximately 12.320 grams of
charas was found from accused No.1. On being questioned as to
where he had brought the said contraband from whom, he pointed out
the house of Faridaben, situated near Chambusa's Tekra, near
Panigate. When a raid was conducted at the said house, one
Mohammad Qureshi was found present therein. From the pocket of his
trousers, 11 tablets/pellets of charas were recovered. In addition
thereto, a quantity of charas and ganja was found in a cupboard
situated on the first floor of the said premises. The said contraband
was weighed on a goldsmith weighing scale and was examined in the
presence of an F.S.L. officer. As the said material was found to be a
prohibited drug, all the plastic bags containing the contraband were
sealed with cotton cloth in the presence of the panch witnesses.
Thereafter a panchnama was prepared and the muddamal was seized.
Hence, a complaint came to be lodged at the City Police Station.
Pursuant to the said complaint, investigation was carried out and,
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upon completion of the investigation, a charge-sheet was filed before
the Sessions Court against the accused for the alleged offences.
2.3 The charge against the accused came to be framed by the trial
Court for the aforesaid offences against the accused. On being
explained it to him, the accused has denied having committed any
offence. The accused pleaded not guilty to the charge and pleaded for
trial and hence, the case was tried by the Trial Court.
3. I t appears from the records that to prove the case, the
prosecution has examined the witnesses and in addition to this, the
prosecution has also produced the documentary evidence.
4. After closure of the evidence, the statements of the accused
under section 313 of the Criminal Procedure Code, 1973 have been
recorded wherein they denied of having committed any offence and
have stated that they are innocent.
5. After hearing both sides and considering the evidence on
records, the trial Court by impugned judgment and order has
acquitted the accused from all the charges levelled against them.
6. Being aggrieved by and dissatisfied with the aforesaid judgment
and order of acquittal the appellant has preferred this appeal.
7. Heard Ms.Jirga Jhaveri, learned Additional Public Prosecutor for
the appellant – State of Gujarat and Mr.VO Joshi, learned counsel for
the respondents – accused at length.
8. Ms.Jhaveri, L earned Additional Public Prosecutor appearing for
the appellant – State of Gujarat has submitted the same facts which
are narrated in the memo of appeal and has also submitted that the
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prosecution has examined witnesses and produced documentary
evidence, despite this fact, the trial Court has not considered the
same in its true and proper perspective in passing the judgment and
order of acquittal. Learned Additional Public Prosecutor, while
referring to the entire oral as well as documentary evidence, has
assailed the impugned judgment and order and submitted that the
trial Court has not taken into consideration the evidence connecting
the accused to the alleged offence in its proper perspective and even
the prosecution has been able to prove the charges levelled against
the accused. While referring to the evidence of the witnesses and the
material collected against the accused, learned Additional Public
Prosecutor has submitted that the prosecution has established the
case against the accused by examining the witnesses, who have
supported the case of the prosecution, however, the trial Court has
discarded and disbelieved the evidence of these witnesses. Learned
Additional Public Prosecutor has submitted that the witnesses have
fully supported the case of the prosecution, however, the trial Court
has not appreciated the same and passed the judgment and order of
acquittal which is illegal and unjust. She has submitted that it is
settled legal position that the evidence of a single witness is sufficient
for conviction if the same is reliable and trustworthy and in the
present case, though the evidence of all the witnesses are reliable
and trustworthy, without any cogent reason, the trial Court has
disbelieved and discarded the evidence of the witnesses.
8.1 Ms.Jhaveri, learned Additional Public Prosecutor has further
submitted that the impugned judgment of acquittal is contrary to the
evidence on record, based on erroneous appreciation of material
evidence, and has resulted in a miscarriage of justice and the findings
recorded by the learned Trial Court are perverse and unsustainable in
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law, thereby calling for interference by this Court in the exercise of its
appellate jurisdiction. She has also submitted that the learned Trial
Court has materially erred in holding that the prosecution has failed to
prove its case beyond reasonable doubt and the findings recorded by
the trial Court were therefore perverse, illegal, and contrary to the
evidence on record.
8.2 Ms.Jhaveri, learned Additional Public Prosecutor has also
submitted that so far as accused No.1 is concerned, from whose
possession the opium was found found and so far as accused No.2 is
concerned, at whose behest house No.3 was searched, from where,
further psychotropic substances were found namely cannabis plant
and hence, the prosecution has proved the case against the accused
by examining the witnesses, however, the trial Court has not
considered the case in its true and proper spirit. She has submitted
that the trial Court has failed to appreciate the fact that the
mandatory provision of Section 42, 43, 50 and 57 of the NDPS Act has
been complied with by the prosecution, in fact, the evidence was led
by the prosecution to the fact that it had complied with the provisions
of the NDPS Act, however, the same has not been considered by the
trial Court. She has submitted that the prosecution has examined the
police witnesses, however, there evidence cannot be brushed aside
that they are interested witnesses.
8.3 According to Ms.Jhaveri, learned Additional Public Prosecutor,
the trial Court ought to have convicted the accused and ought to have
imposed necessary sentence. Learned Additional Public Prosecutor
has prayed to allow the present appeal and to quash and set aside the
impugned judgment and order of acquittal.
9. Per contra, Mr.Joshi, learned counsel for the respondents –
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accused has supported the impugned judgment and order and has
submitted that the trial Court has not committed any error of law and
fact in acquitting the accused from the charges levelled against them.
He has submitted that the ingredients of the offence alleged against
the accused are not proved beyond reasonable doubt and, therefore,
the trial Court has rightly acquitted the accused as the complainant
has failed to prove the charge levelled against the accused. He has
also submitted that there is no iota of evidence to connect the
accused with the alleged crime in question. He has submitted that the
evidence led by the prosecution suffers from material contradictions,
omissions, and inconsistencies, which create serious doubt about the
veracity of the prosecution case and the prosecution has failed to
establish the essential ingredients of the alleged offences and has not
produced reliable, trustworthy, and corroborative evidence connecting
the respondent with the commission of the alleged offence.
9.1 Mr.Joshi, learned counsel has submitted that the prosecution
has miserably failed to establish the case against the accused so far
as Section 20(b) of the NDPS Act is concerned. He has submitted that
so far as the case against accused No.1 is concerned, from whose
personal possession the opium was recovered, but the police
witnesses have stated in their evidence that the contraband article
found from the possession of the accused was for his personal
consumption as he was in habit of consume opium. He has submitted
that during the search and seizure under the Act is required, the
complainant and the Investigating Officer admitted in their evidence
that they have not followed the procedure as laid down under
Sections 42 and 50 of the NDPS Act, however, they have to comply
with the mandatory provision and also intimate the accused with
regard to the provision of Section 50 of the NDPS Act. He has
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submitted that after referring the evidence of the witnesses, the trial
Court has passed the judgment and order of acquittal which is in
consonance with the settled principles enunciated by this Court and,
there is no any illegality and infirmity.
9.2 Mr.Joshi, learned counsel has submitted that it is a settled
principle of criminal jurisprudence that the presumption of innocence
in favour of an accused is further strengthened by an order of
acquittal. It is submitted that unless the findings recorded by the trial
Court are shown to be perverse, illegal, or contrary to the evidence on
record, the Appellate Court should be slow in interfering with an order
of acquittal. It is submitted that the appellant has failed to point out
any infirmity, illegality, perversity, or misreading of evidence in the
impugned judgment and order and the findings recorded by the
learned trial Court are based upon proper appreciation of the
evidence and settled legal principles. Learned counsel for the
respondents has submitted that the appeal being meritless deserves
to be dismissed and the impugned judgment and order of acquittal
deserves to be confirmed.
9.3 In support of his arguments, Mr.Joshi, learned counsel has relied
upon the decisions of the Supreme Court as well as this Court as
referred by the trial Court and submitted that the appeal deserves to
be dismissed and the judgment and order deserves to be quashed
and set aside.
10. On perusal of the impugned judgment and order of acquittal
passed by the trial Court and the submissions of both the sides, the
questions arise for determination by this Court are as under:-
(1) whether the trial Court has rightly justified in passing the
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judgment and order of acquittal.
(2) whether the trial Court has rightly appreciated the evidence
led by the prosecution in recording the reasons.
(3) whether there is any illegality, irregularity and perversity in
the impugned judgment and order of acquittal.
11. Considering the aforesaid submissions and aspects, this Court is
first required to examine the facts of the case. On 30.11.2008, P.W.5 –
Ranjitsinh Chhatrasinh (Police Head Constable), who was serving in
the D.C.B. North Striking Force, received secret information that
accused No.1 was in possession of psychotropic substances, which he
had purchased from accused No.2. Upon receipt of the said
information, he immediately reduced the same into writing and
forwarded it to the senior officers through a Police Constable.
Thereafter, after calling the panchas and a goldsmith along with a
weighing machine, they proceeded towards the place indicated in the
information, along with the senior officers, i.e. P.W.6 – M. M. Aalsika
and P.W.7 – Chandubhai Sanabhai Baranda. An entry was made at the
City Police Station, and they proceeded to a cabin where one person
was found sitting and selling biscuits and other articles. After
introducing themselves to the accused, they informed him about the
provisions of Section 50 of the NDPS Act and told him that, if he
desired to be searched in the presence of a Gazetted Officer, they
were ready to call such officer to the place. However, when asked,
accused No.1 refused the said suggestion and stated that they could
conduct the search. Upon search, opium was found in a plastic bag.
During further investigation, it was revealed that accused No.1 had
obtained the contraband article from accused No.2, who was acting as
an agent of accused No.3. Upon receipt of such information, the
raiding party proceeded to the place where accused No.2 was found.
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Thereafter, during the search of the house of accused No.3,
psychotropic substances, namely, cannabis, were found. The
goldsmith was called to weigh the articles. All these procedures were
completed on the spot, whereafter the search and seizure panchnama
was prepared and supplied to the accused.
12. Upon perusal of the evidence of P.W.5 – Ranjitsinh Chhatrasinh
(Exhibit 24), P.W.6 – M. M. Aalsika (Exhibit 26), and P.W.7 –
Chandubhai Sanabhai Baranda (Exhibit 34), it appears that the
information was received by P.W.5, who claimed that he had reduced
the same into writing and forwarded it to the higher officer, i.e., the
D.C.P., North Zone. However, the other police witnesses, as well as
the Investigating Officer, P.W.13 – Bhupendra Naginsinh Chavda
(Exhibit 53), have specifically admitted that the concerned
Investigating Officer did not investigate whether the said information
was received at the office of the D.C.P., North Zone, or whether any
further action was taken by the D.C.P. thereon. So far as the basic
requirement under Section 42 of the NDPS Act is concerned, none of
the witnesses establishes that the provisions of Section 42 of the Act
were duly complied with. Surprisingly, from the deposition of P.W.7, it
appears that he himself completed the procedure of seizure and
sampling, which is completely contrary to the settled principles
enunciated by the Hon’ble Supreme Court and this Court. Upon
perusal of the evidence of P.W.1 – Kalpesh Vithalbhai Patel, P.W.2 –
Mohammad Vasim Noor Mahammad Shaikh, and P.W.3 – Aabidali
Yasinali Saiyed, no incriminating material was elicited by the
prosecution, though these witnesses were examined by the
prosecution in detail. Further, even in their cross-examination, no fact
was elicited which supports the case of the prosecution. Under such
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circumstances, the evidence of the panch witnesses is of no
assistance to the prosecution. Though the panch witnesses were not
declared hostile, their depositions do not support the prosecution
case, nor do they reveal any fact incriminating the accused.
Therefore, the Court is required to examine the evidence of the police
witnesses. From the evidence of the police witnesses, it emerges that
the Investigating Officer failed to collect material and cogent evidence
with regard to the ownership of the house and also failed to collect
any material to establish that accused No.3 was in possession of, or
was in charge of, the said house. Upon perusal of the evidence of
P.W.3, it appears that accused No.3 was personally present before the
concerned police station and, thereafter, the further procedure was
completed. Upon perusal of the evidence of P.Ws.5 to 13, it further
emerges that there was a serious breach of Section 55 of the NDPS
Act, as there was no compliance with the said provision. There is no
evidence on record regarding the safe custody of the muddamal, to
whom the same was handed over, or who subsequently transferred its
custody. The evidence on record, therefore, does not inspire
confidence and establishes a serious breach of Section 55 of the NDPS
Act. As regards compliance with Section 57 of the NDPS Act, the
evidence of P.W.13 reveals that no evidence has come on record to
establish such compliance. In view thereof, while passing the
impugned judgment and order, the trial Court has not committed any
error. The trial Court has recorded its findings and reasons in
paragraph 6 and, more particularly, from paragraph 7 onwards, and
has dealt with the evidence of the witnesses in detail. In paragraph
10, the trial Court observed that the prosecution had miserably failed
to prove the charges against the accused, particularly in view of the
non-compliance with the mandatory provisions of Sections 42, 50, 55,
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and 57 of the NDPS Act. It is further required to be observed that,
though the offence was committed within the jurisdiction of
Karelibaug Police Station, the complainant and the raiding party,
without informing the concerned police station, carried out the entire
procedure, and the FIR was lodged at Vadodara City Police Station.
When this question was put to P.W.7, he explained that it was a
running trap and, therefore, the offence was in continuation and was
registered at Vadodara City Police Station. With regard to the fact that
two different police stations had jurisdiction over the place where the
offence was disclosed and investigated by the complainant and the
raiding party, neither of the concerned police stations was informed
about the said offence. So far as the procedure carried out at the
place mentioned by the witnesses is concerned, the evidence, on the
contrary, reveals that the entire procedure was carried out at
Hathikhana, near Pani Gate, and not at the place where accused
Nos.1 and 2 were found. Even the sealing and sampling procedures
were carried out at Hathikhana, near Pani Gate. This fundamental fact
is completely contrary to the evidence of the witnesses. In view of this
material contradiction and the other deficiencies noted hereinabove,
the prosecution has failed to establish the charges levelled against
the accused. Thus, I am of the opinion that the trial Court has not
committed any error of fact or law in passing the impugned judgment
and order. No illegality or infirmity is found in the judgment and order
warranting interference.
13. It is well settled by catena of decisions that the an Appellate
Court has full power to review, re-appreciate and reconsider the
evidence upon which the order of acquittal is founded. However,
Appellate Court must bear in mind that in case of acquittal there is
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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 their innocence is further reinforced, reaffirmed and strengthened
by the trial Court.
14. Further, 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. Further, while
exercising the powers in appeal against the order of acquittal, the
Court of appeal would not ordinarily interfere with the order of
acquittal unless the approach of the lower Court is vitiated by some
manifest illegality and the conclusion arrived at would not be arrived
at by any reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are possible, the
Court of appeal would not take the view which would upset the
judgment delivered by the Court below. However, the Appellate Court
has a power to review the evidence if it is of the view that the
conclusion arrived at by the Court below is perverse and the Court has
committed a manifest error of law and ignored the material evidence
on record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to find out whether
the accused are connected with the commission of the crime with
which they are charged.
15. The scope and principles are enunciated by the Hon’ble Apex
Court in case of Chandrappa and others Vs. State of Karnataka
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reported in (2007) 4 SCC 415 , more particularly paragraph Nos.
42 and 43 , which was subsequently re-affirmed by the Hon’ble Apex
Court in the case of Rajesh Prasad Vs. State of Bihar and
another , reported in [ 2022] 3 SCC 471 , wherein, the Hon’ble Apex
Court has enunciated the general principles in case of acquittal, more
particularly in paragraph No. 26 the general principles are set out
by the Hon’ble Apex Court based upon various decisions of the
Hon’ble Apex Court. Then in case of Babu Sahebagouda
Rudragoudar Vs. State of Karnataka, reported in AIR 2024 SC
2252 = (2024) 8 SCC 149, the Hon'ble Apex Court has dealt with
the similar issue, more particularly, in paragraph Nos. 37 to 40.
Hence, we are in complete agreement with the findings recorded by
the trial Court.
16. It is also worthwhile to refer to the recent decision of the
Hon’ble Supreme Court in the case of Ramesh vs. State of
Karnataka, reported in [2024] 9 SCC 169 , wherein the Hon’ble
Supreme Court has held and observed in paras-20 and 21 as under:-
“20. At this stage, it would be relevant to refer to the
general principles culled out by this Court in Chandrappa
and others vs. State of Karnataka , regarding the power of
the appellate Court while dealing with an appeal against a
judgment of acquittal. The principles read thus:
“42. …. (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
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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 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.
21. In Rajendra Prasad v. State of Bihar, a three-Judge
Bench of this Court pointed out that it would be essential
for the High Court, in an appeal against acquittal, to clearly
indicate firm and weighty grounds from the record for
discarding the reasons of the Trial Court in order to be able
to reach a contrary conclusion of guilt of the accused. It
was further observed that, in an appeal against acquittal, it
would not be legally sufficient for the High Court to take a
contrary view about the credibility of witnesses and it is
absolutely imperative that the High Court convincingly
finds it well-nigh impossible for the Trial Court to reject
their testimony. This was identified as the quintessence of
the jurisprudential aspect of criminal justice. Viewed in this
light, the brusque approach of the High Court in dealing
with the appeal, resulting in the conviction of Appellant
Nos. 1 and 2, reversing the cogent and well-considered
judgment of acquittal by the Trial Court giving them the
benefit of doubt, cannot be sustained.”
17. Considering the entire evidence on record, it clearly appears
that there is no credible evidence to connect the present accused with
the alleged crime and the evidence on record is not so convincing to
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prove beyond reasonable doubt that the accused has committed the
alleged crime. Therefore, the accused cannot be convicted on the
evidence on record.
18. On perusal of the impugned judgment and order, it clearly
transpires that the trial Court has not committed any error of fact and
law in appreciating the evidence on record and in acquitting the
accused from the charges levelled against them. Even on re-
appreciation of the evidence, it clearly transpires that the prosecution
has miserably failed to prove the charge levelled against the accused
beyond reasonable doubt. Therefore, the impugned judgment and
order of the trial Court is sustainable and the present appeal is liable
to be dismissed.
19. It is observed that, having regard to the facts and
circumstances of the case, while registering the FIR against the
accused, the concerned Investigating Officer himself recorded that
the facts disclosed the commission of a cognizable offence. Therefore,
an FIR was required to be registered against all persons involved in
the offence of corruption. From the evidence of P.W.13, it appears
that, based on the facts stated in the FIR, statutory proceedings under
the Prevention of Corruption Act were initiated against the Gujarat
State Traffic Police. However, there is nothing on record to indicate
the present status or outcome of those proceedings. Therefore, this
Court requests the Director of Prosecution to look into the matter. If
the proceedings have not culminated in a criminal trial, appropriate
action shall be taken against the concerned police officer(s) involved
in the alleged acts of corruption, as referred to in the present case.
20. In view of the above, t h e present appeal is devoid of merits and
it deserves to be dismissed. Resultantly, it is dismissed. The
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impugned judgment and order of acquittal passed by the trial Court is
hereby confirmed. Bail bond stands cancelled. Record and
proceedings be sent back to the concerned Trial Court forthwith. The
copy of this order be sent to the office of Director of the Prosecution
for appropriate action.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
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