STATE OF GUJARAT vs JITENDRA AOROBORIYA PALKA
- Court
- Gujarat High Court
R/CR.A/1091/2013 (GJHC240444112013) JUDGMENT DATED: 27/08/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1091 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Yes No
Approved for Reporting
✔
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STATE OF GUJARAT
Versus
JITENDRA AOROBORIYA PALKA
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Appearance:
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
NON BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s)
No. 1
RULE UNSERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 27/08/2026
JUDGMENT
1. The appellant - State of Gujarat has preferred this appeal under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘the Code’ for short) against the judgment
and order dated 24.01.2013 passed by the learned Special Judge
(NDPS), Surat (hereinafter be referred to as “the trial Court”) in
Special (NDPS) Case No.7 of 2010, whereby the trial Court has
acquitted the original accused (respondent herein) from the offences
punishable under Sections 8(c) and 20(b) of the Narcotic Drugs and
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Psychotropic Substances Act, 1985 (hereinafter be referred to as the
“NDPS Act”).
2. Short facts of the prosecution case are that on 08.02.2010, the
complainant Hajabhai Govindbhai, unarmed Police Head Constable
was patrolling on Surat Railway Station along with his staff members
namely V.R. Bhil (PSI), Mohammad Hanif (Police Constable), Bajirav,
Lalsinh and Vinod. During that time, at about 15:15 hours, one person
(accused herein) was going towards the public toilet of Platform No.1
with one bag in suspicious condition, therefore, the complainant
stopped him and inquired his name and after searching his bag, bulk
quantity of 13.950 Kgs. Ganja was found without pass and permit
from the illegal possession of the accused. Thereby, the accused
committed an offence punishable under Sections 8(c) and 20(b) of the
NDPC Act.
2.2 Hence, a complaint being C.R. No.II-3124/2010 was lodged by
the complainant before Surat Railway Police Station for the aforesaid
offences. After completion of the investigation, chargesheet was filed
against the accused person, and thereafter, charge was framed
against him for the offence punishable under Sections 8(c) and 20(b)
of the NDPS Act. On being explained it to him, the accused has denied
having committed any offence. The accused pleaded not guilty to the
charges and claimed to be tried.
2.3 In order to bring home the charge leveled against the accused,
the prosecution has examined as many as 13 witnesses and also
produced 21 documentary evidence on record of the case.
3. After closure of the evidence, the statement of the accused
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under section 313 of the Criminal Procedure Code, 1973 has been
recorded wherein he denied of having committed any offence and has
stated that he is innocent.
4. 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 him / her /
them.
5. Being aggrieved by and dissatisfied with the aforesaid judgment
and order of acquittal the appellant – State of Gujarat has preferred
this appeal.
6. Heard Ms.Jirga Jhaveri, learned Additional Public Prosecutor for
the appellant – State of Gujarat.
6.1 At the outset, it may be noted that, though a non-bailable
warrant had been issued against the respondent-accused, the same
could not be served upon him and was returned unexecuted with an
endorsement and detailed remarks forwarded by the learned
Additional Sessions Judge, Surat. It was reported that the non-bailable
warrant had been sent for execution through the concerned police
station; however, the report received from the concerned police
station stated that the police had visited the place of residence of the
respondent-accused and had also recorded the statement of the
Sarpanch of the village. The Sarpanch stated that the respondent-
accused was no longer residing in the said village and had left the
village long ago. It was further stated that his whereabouts were not
known to the villagers and that they had no information regarding his
present location. Accordingly, the matter has proceeded in the
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absence of the respondent-accused.
7. Ms. Jhaveri , learned 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
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. Ms. Jhaveri , 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, Ms.
Jhaveri , 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. She 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.
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7.1 According to Ms. Jhaveri , learned Additional Public Prosecutor,
the trial Court ought to have convicted the accused and ought to have
imposed necessary sentence. She has prayed to allow the present
appeal and to quash and set aside the impugned judgment and order
of acquittal.
8. On perusal of the impugned judgment and order of acquittal
passed by the trial Court, the questions arise for determination are as
under:-
(1) whether the trial Court is justified in passing the 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 or any perversity in
the impugned judgment and order of acquittal.
9. I have heard the learned Additional Pubic Prosecutor appearing
for the appellant – State of Gujarat and perused the material placed
on record. On perusal of the impugned judgment and order, as well as
the depositions of the witnesses, it emerges that on 08.02.2010, the
complainant, namely, Hajabhai Govindbhai, an unarmed Police Head
Constable serving with the Surat Railway Police, was on duty at
Platform No. 1 of Surat Railway Station along with PSI V.R. Bhil and
Police Constables Mahammad Hanif, Bajirav, Lalsinh and Vinod. At
about 15:15 hours, they suspected one person, namely, the
respondent herein, who was standing near the washroom at the
northern end of the platform. They, therefore, approached him and
inquired as to where he was travelling and what he was carrying in
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the bag, as he was carrying a regzine bag on his shoulder. The
respondent informed them that he had brought ‘cannabis sativa’.
Thereupon, PSI V.R. Bhil called two panchas who could interact with
and communicate in Hindi with the respondent, as the respondent
was a resident of Orissa and did not understand Gujarati. Accordingly,
resolution was made in compliance with Sections 42 and 50 of the
NDPS Act and the requisite procedure was completed and the
necessary panchnama was drawn. The respondent was thereafter
subjected to personal search, during which nothing incriminating was
found on his person. However, from the bag carried by the
respondent, a narcotic substance identified as ‘cannabis sativa’, as
defined under Section 2(iii)(b) of the NDPS Act was recovered.
10. Thereafter, they immediately called the FSL Officer, namely,
Chetanbhai C. Patel, along with Abdul Raheman Kader, carrying
weighing scales for the purpose of weighing the muddamal. At the
railway platform itself, the muddamal was weighed and was found to
be 13.950 kilograms. Out of the said muddamal, samples weighing
100 grams each were drawn, and two packets were prepared
accordingly. The samples were duly sealed and seized in the presence
of the panch witnesses, and all necessary formalities were completed.
Thereafter, the complainant, Hajabhai Govindbhai, Police Head
Constable, recorded the complaint against the respondent and lodged
the FIR for the offences punishable under Sections 8(c) and 20(b) of
the NDPS Act.
11. It is the case of the complainant that he was on duty from 8:00
a.m. to 8:00 p.m. at Platform No. 1 of Surat Railway Station along with
other police personnel. He has stated that when they noticed the
accused carrying a regzine bag, they inspected him and, upon
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searching the bag, found the alleged narcotic substance therein,
pursuant to which the complaint came to be lodged. Since the
complainant was serving with the Railway Police at Surat, he had no
prior secret information regarding the respondent. It was during a
sudden inspection that the police personnel suspected the
respondent, and upon searching the regzine bag carried by him, the
alleged narcotic substance was found. Thereafter, all the requisite
formalities, including the drawing of samples, were completed at the
railway platform itself. This, in substance, is the case of the
prosecution.
12. If the depositions of the witnesses, namely, PW-1, the
complainant, and PW-9, PW-10 and PW-11, are considered, it becomes
apparent that material contradictions have emerged in their evidence
with regard to the place where the requisite formalities were
completed. As per the case of the prosecution, the entire procedure
was carried out at Platform No. 1 of the railway station; however, the
aforesaid witnesses have stated in their depositions that all the
formalities were completed at the Railway Police Station. Even the
person who had weighed the narcotic substance has stated that the
weighing of the muddamal and the drawing of samples were carried
out at the Railway Police Station. So far as the age of the respondent
is concerned, there was a dispute as to whether the respondent was a
minor at the time of his arrest. However, no investigation was
conducted to ascertain whether he was a major or a minor at the
relevant time. The Trial Court has recorded that, from the deposition
of PW-1, the complainant, it is admitted that all these procedures
were undertaken at the railway platform. However, unless and until
the FIR is registered or the offence is registered before the concerned
Police Station, the drawing of samples, seizure of muddamal, and
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other such activities, for which the C.R. number or registration
number is required to be mentioned, cannot ordinarily be carried out
by referring to a particular offence number. In the present case, PW-1
has admitted in his cross-examination that all these activities were
carried out at the railway platform and that, at that time, neither he
nor any other police personnel had any information regarding the
registration number of the offence. Therefore, without recording the
FIR and without there being any C.R. number, the police proceeded to
draw the panchnama and carry out all the requisite formalities. This
circumstance, as rightly observed by the Trial Court, creates a serious
doubt regarding the prosecution's case and the manner in which the
alleged investigation and seizure proceedings were carried out.
13. The Trial Court has also recorded that the respondent was not
conversant with the Gujarati language. However, none of the police
witnesses has stated whether any interpreter was called to explain
the procedure to the respondent or whether the factum of registration
of the offence against him was ever communicated to him in a
language known to and understood by him. Therefore, the failure to
establish that the respondent was duly informed of the proceedings
and the allegations against him in a language understood by him
constitutes a serious deficiency in the prosecution case. The panch
witnesses have not supported the prosecution's case. Even from their
cross-examination, the prosecution has failed to elicit any positive
evidence in support of its case.
14. If the evidence of PW-3, the Scientific Officer, at Exh. 15 is
examined, he has deposed before the Trial Court that, on 07.02.2010
at about 16:40 hours, he received a telephonic message from the
Investigating Officer regarding the preliminary examination of the
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substance, and the Investigating Officer requested him to attend the
railway platform. Accordingly, at about 16:45 hours, he proceeded to
Railway Platform No. 1 at Surat with the necessary kit and reached
there at about 17:05 hours. He thereafter conducted a preliminary
analysis of the substance and gave a report stating that the
substance was ‘Cannabis sativa’. However, in his cross-examination,
he admitted that the substance contained leaves, fruits, flowers and
roots. He denied the suggestion that he had not separated the
different parts of the plant, particularly those parts which do not fall
within the definition of ‘ganja’ as provided under Section 2(iii)(b) of
the NDPS Act. He also admitted that he had mentioned the gross
weight of the substance.
15. Similarly, if the evidence of PW-4, Sheikh Abdul Ahmed, at Exh.
18 is examined, he has deposed before the Trial Court that he was
called by the Railway Police at the Railway Police Chowki along with
an electronic weighing machine. Upon reaching the police chowki, he
weighed the narcotic substance and also weighed the regzine bag in
which the substance was allegedly kept. He has further admitted
before the Court that he did not issue any receipt for the said
weighing. He has also admitted that he had issued a receipt in the
morning hours, i.e., between 9:30 and 10:00 a.m. However, the other
police witnesses have consistently stated that all the proceedings
were carried out at the railway platform, including the weighing of the
muddamal narcotic substance. Thus, there is a material discrepancy
between the deposition of PW-4 and the evidence of the other police
witnesses regarding the place and manner in which the weighing of
the alleged narcotic substance was carried out. Therefore, the
evidence of PW-4 is required to be carefully examined vis-à-vis the
evidence of the other prosecution witnesses, particularly in light of
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the aforesaid contradiction. All these circumstances clearly reveal that
the prosecution has failed to prove the charge against the respondent
beyond reasonable doubt.
16. There are also serious discrepancies regarding the sample
allegedly produced before the PSO and subsequently sent to the FSL,
Gandhinagar. The prosecution has failed to satisfactorily explain how
the sample was kept, who was responsible for keeping it, in what
manner it was preserved, and how it was carried and transmitted to
the FSL. These unexplained circumstances create a serious doubt
regarding the procedure followed by the Investigating Officer (I.O.) in
handling and forwarding the sample. The prosecution has failed to
provide any satisfactory explanation for these discrepancies and
lapses. Consequently, the integrity of the procedure adopted by the
I.O. remains doubtful, which further strengthens the case of the
respondent and entitles him to the benefit of reasonable doubt.
17. If the evidence of PW-5, PW-6 and PW-7 is considered, major
contradictions are evident, as noticed by the learned Trial Court in
paragraphs 15, 16 and 17 of the impugned judgment. Even in
paragraph 18, serious discrepancies are found in the deposition of
PW-8, particularly with regard to the fact that the chit bearing the
signatures of the Panchas was not found in the sample muddamal
sent for examination. There is no reference to the said chit bearing
the signatures of the Panchas having been included in the sample
sent for examination. Furthermore, the deposition of PW-9, when
considered vis-à-vis the depositions of PW-10 and PW-11, also creates
serious doubt regarding the prosecution story. The evidence of these
witnesses clearly reveals fundamental defects and non-compliance
with the mandatory provisions of the NDPS Act, which have ultimately
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resulted in the acquittal of the respondent.
18. The Trial Court, in paragraphs 30 to 35 of the impugned
judgment, has recorded cogent and convincing reasons for concluding
that, in the facts and circumstances of the case and on the basis of
the evidence adduced on record, the prosecution has failed to
establish the charge against the respondent beyond reasonable
doubt. The Trial Court has rightly found serious discrepancies with
regard to the search and seizure proceedings and also with regard to
compliance with the mandatory provisions contained in Sections 42,
50, 55 and 57 of the NDPS Act. There is no evidence worth the name
adduced by the prosecution to establish that the mandatory
procedure prescribed under Sections 42, 50, 55 and 57 of the NDPS
Act was duly followed. In such circumstances, the findings recorded
by the learned Trial Court are based on proper appreciation of the
evidence and are in consonance with the settled legal principles
enunciated by the Hon’ble Supreme Court as well as this Hon’ble
Court. In view of the above, I am of the opinion that the trial Court has
not committed any error of facts and law in passing the impugned
judgment and order and I do not find any illegality, perversity, or
infirmity in the impugned judgment and order warranting interference
by this Court.
19. It is well settled by catena of decisions that 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 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
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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.
20. 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.
21. The scope and principles are enunciated by the Hon’ble Apex
Court in case of Chandrappa and others Vs. State of Karnataka
reported in (2007) 4 SCC 415 , more particularly paragraph Nos.
42 and 43 , which was subsequently re-affirmed by the Hon’ble Apex
Court Rajesh Prasad Vs. State of Bihar and another , reported in
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[ 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, I am in complete
agreement with the findings recorded by the trial Court.
22. 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 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
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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.”
23. 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
prove beyond reasonable doubt that the accused has committed the
alleged crime. Therefore, the accused cannot be convicted on the
evidence on record.
24. 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 him. Even on re-
appreciation of the evidence, it clearly transpires that the prosecution
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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.
25. 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
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.
(HEMANT M. PRACHCHHAK,J)
Dolly
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