STATE OF GUJARAT vs JITSINGH BALWANTSINGH LAVANA
- Court
- Gujarat High Court
R/CR.A/2286/2008 JUDGMENT DATED: 15/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2286 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT
Versus
JITSINGH BALWANTSINGH LAVANA & ANR.
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Appearance:
MS JYOTI BHATT APP for the Appellant(s) No. 1
MR JAGDHISH SATAPARA(5524) for the Opponent(s)/Respondent(s)
No. 1,2
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CORAM: HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 15/07/2026
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
judgment and order dated 08.05.2008 passed by the learned
Additional Sessions and Fast Track Judge and Special N.D.P.S. Judge
(Court No.5), Gandhinagar (hereinafter be referred to as “the trial
Court”) in Special (N.D.P.S.) Case No.2 of 2007, whereby the trial
Court has acquitted the original accused (respondents herein) from
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the offences punishable under Sections 15, 27 and 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 [hereinafter be referred
to as “the NDPS Act”] and under Section 66(B), 65AE, 116(B), 81 of
the Bombay Prohibition Act.
2. Short facts of the prosecution case are that on 19.09.2007, at
about 12.30 hours, Near Bhagyoday Hotel, a raid was carried out and
the accused were caught hold in raid with their truck bearing
registration No.HR-03-GA-0272 with foreign liquor of 331 boxes in
which 3972 bottles were loaded and raiding party seized 478 bear tin
and poppy straw weighing 175 Grams. Hence, a complaint being C.R.
No.II-91/2007 was lodged by the A.S.I. Takhuji Maganji complainant
before Dabhoda Police Station for the aforesaid offences. The police
prepared panchnama of the scene of offence, seizure panchnama and
after preparing the arrest panchnama, the accused came to be
arrested. On completion of investigation, charge sheet was submitted
into the Court of learned J.M.F.C.
2.1 The charge against the accused came to be framed by the trial
Court vide Exhibit 2 for the aforesaid offences against the accused.
On being explained it to them, the accused have 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 following documentary evidence.
4. After closure of the evidence, the statements of the accused
under section 313 of the Criminal Procedure Code, 1973 have been
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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 – State of Gujarat has preferred
this appeal.
7. Heard Ms.Jyoti Bhatt, learned Additional Public Prosecutor for
the appellant – State of Gujarat and Mr.Jagdhish Satapara, learned
counsel for the respondents – accused at length.
8. 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
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
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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. Learned Additional Public
Prosecutor 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 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 law, thereby
calling for interference by this Court in the exercise of its appellate
jurisdiction. Learned Additional Public Prosecutor 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 Learned Additional Public Prosecutor has also submitted that
the accused at the time of incident, without any pass-permit were
taken poppy straw weighing 175 Gram loaded in the truck under the
driver seat and the same was seized during the raid. She has
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submitted that the trial Court has committed an error in not
considering the evidence of P.W.7 – Parasbhai Mohanlal (Exhibit 23)
and P.W.13 – Gagandeep Gambhir (Exhibit 34) though these
witnesses have fully supported the case of the prosecution beyond
reasonable doubt. She has submitted that there was sufficient
material on record of the case to prove the involvement of the
accused and keeping the muddamal in conscious possession and
hence, the trial Court has committed an error in acquitting the
accused from the charges levelled against them.
8.3 According to 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, learned counsel for the respondents – 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.
Learned counsel for the respondents - accused 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
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the alleged offences and has not produced reliable, trustworthy, and
corroborative evidence connecting the respondent with the
commission of the alleged offence. He 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.
10. This Court has considered the submissions made by the
respective parties, the material placed on record, the record and
proceedings of the case, and has perused the impugned judgment
and order of acquittal. The prosecution has raised serious contentions
with regard to the impugned judgment and order passed by the trial
Court, whereby the respondents were acquitted of the charges
levelled against them. According to the prosecution, the raiding party
found a huge quantity of foreign-made liquor in the conscious
possession of the accused. The truck was initially intercepted by the
Gujarat State Highway Traffic Police, who informed the
Superintendent of Police, Gandhinagar. Upon receipt of the said
information, the message was conveyed to the complainant, who was
on night duty. The complainant received information from the
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concerned officer that the Gujarat State Highway Traffic Police had
intercepted a truck near Bhagyoday Hotel on the Ahmedabad–Udaipur
National Highway. Upon receiving the information, the complainant
proceeded to the spot in his vehicle along with ten police constables.
On reaching the place, he found the truck stationed there, along with
a Jeep belonging to the Gujarat State Highway Traffic Police parked
beside it. Upon inquiry, it was revealed that the truck had been
intercepted by the Gujarat State Highway Traffic Police. Thereafter, in
the presence of the panch witnesses and other police officers, the
complainant conducted a search of the truck. The truck was found to
be carrying fruit cartons, and after removing the cartons, a huge
quantity of foreign-made liquor concealed inside the boxes was
discovered. Approximately 437 boxes, including about 100 boxes
containing beer cans, were recovered. Further investigation revealed
that a cloth bag was found beneath the driver's seat containing poppy
straw weighing 175 grams. Out of the said quantity, 50 grams was
drawn as a sample, and the remaining quantity was sent to the
concerned police station. Upon receipt of the Forensic Science
Laboratory (FSL) report, it was confirmed that the seized substance
was poppy straw weighing 175 grams. Accordingly, the case was
registered against the accused as well as other persons named in the
FIR who could not be apprehended, for the alleged offences. Upon
perusal of the evidence of P.W.7, who was a goldsmith, it appears that
he was called for the purpose of weighing the articles seized from the
possession of the accused. Through the evidence of P.W.7, the
prosecution sought to establish that the accused were liable for the
alleged offences and deserved to be convicted. However, upon a
careful examination of the oral as well as documentary evidence led
before the trial Court, it appears that although the FIR was registered
by the police personnel and the prosecution witnesses were police
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officials from different departments, there were several omissions and
material contradictions in their evidence. On perusal of the complaint
lodged by P.W.1, it appears that the prosecution case is that the truck
was intercepted by the Gujarat State Highway Traffic Police, who
informed the Superintendent of Police, Gandhinagar. Thereafter, the
information was conveyed to the complainant, who was the In-charge
of Dabhoda Police Station. However, the complainant admittedly did
not make any entry regarding the receipt of such information in the
station diary. In his deposition, the complainant admitted that
although he received instructions from the higher authority, he
neither recorded the same in the station diary nor in the case diary.
At the relevant time, he was serving as an Assistant Sub-Inspector
(A.S.I.). He received the information in the early hours of 19.09.2007
and proceeded to the place near Chhala Highway, where he found
Truck No. HR-03-GA-0272. A police Jeep bearing Registration No. GJ-1-
G-4342, belonging to the Gujarat State Highway Traffic Police and
under the charge of Mr. M.N. Vankar, was also present at the spot. Mr.
Vankar had informed the office of the Superintendent of Police,
Gandhinagar, and based on that information, the message was
conveyed to the complainant, directing him to proceed to the
specified location. However, despite receiving such instructions, the
complainant failed to reduce them into writing at Dabhoda Police
Station. It is pertinent to note that the information was received
during the early hours of 19.09.2007. The complainant remained
engaged in drawing the panchnama until the early morning. However,
the FIR came to be registered only at about 3:00 p.m., and no
explanation whatsoever has been offered for such inordinate delay in
lodging the FIR. The evidence of the complainant further reveals that
different brands of foreign liquor and beer cans were recovered from
the truck and were duly mentioned in the FIR. However, for reasons
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best known to the Investigating Officer, the seized liquor was neither
sent to the FSL for examination nor was any expert report obtained,
despite the FSL being situated at Gandhinagar. With regard to the
poppy straw allegedly recovered from beneath the driver's seat, it
appears that during the examination of the witnesses, none of them
deposed as to who was in conscious possession of the said
contraband. The prosecution failed to establish conscious possession
of the poppy straw by either of the accused. A perusal of the
panchnama indicates that while the police officers were engaged in
recovering the bottles of foreign-made liquor and beer cans, they
were merely preparing the inventory of the seized articles. Thereafter,
while searching the driver's cabin, they allegedly found a packet
beneath the driver's seat containing another plastic packet, which,
upon being opened, was found to contain poppy straw. The said
sample was sent to the FSL, which confirmed through its report at
Exhibit 43 that the substance was poppy straw. As regards the
ownership and possession of the truck, although the complainant
made inquiries, no registration certificate or any other ownership
document was collected or placed on record by the Investigating
Officer. The record further reveals that although the Investigating
Officer recorded statements in Rajasthan from a person holding a
licence for the sale and purchase of poppy straw, and also recorded
statements in Haryana regarding the manufacture of Indian-made
foreign liquor, he failed to collect any evidence as to who had
arranged the transportation or intended delivery of the liquor into
Gujarat. No investigation was conducted to ascertain where the huge
quantity of liquor was to be supplied or to whom it was to be
delivered. It is evident that such a large quantity of liquor was being
transported in a truck, and therefore someone must have been the
intended recipient in Gujarat. However, no investigation whatsoever
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was carried out to identify the intended destination, consignee, or
recipient of the contraband liquor. This Court has also considered the
reasons assigned by the trial Court. It is noticed that the commercial
quantity prescribed for poppy straw under the relevant law is one
kilogram, whereas the quantity recovered in the present case was
only 175 grams. The statements of the accused recorded under
Section 313 of the Code were interpreted, as they were not residents
of Gujarat and the evidence had been recorded in Gujarat. The
accused denied the allegations in toto and asserted that they had
been falsely implicated by the police. Beyond such denial, there was
no evidence to indicate the purpose for which the poppy straw was
allegedly possessed. It was neither the prosecution's case nor the
defence case that the contraband was meant for personal
consumption. In these circumstances, the prosecution failed to
produce any evidence to establish whether the seized poppy straw
was intended for commercial purposes or otherwise. Had it been
intended for commercial purposes, the prosecution ought to have
investigated the identity of the intended recipient in Gujarat. No such
investigation was undertaken. Therefore, the trial Court rightly passed
the impugned judgment and order after assigning cogent reasons in
paragraphs 11 to 28. The trial Court also recorded, in paragraph 29,
the reasons for disbelieving the prosecution case. Accordingly, this
Court is of the considered view that the trial Court has not committed
any error of fact or law in passing the impugned judgment and order
of acquittal. No illegality, perversity, or infirmity is found in the
impugned judgment warranting interference by this 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 there is no any illegality and infirmity found in the judgment
and order.
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11. 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
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.
12. 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
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the accused are connected with the commission of the crime with
which they are charged.
13. 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 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.
14. 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
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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 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
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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.”
15. 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.
16. 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.
17. 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
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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.
18. 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. 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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