R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 122 of 2009

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

==========================================

Approved for Reporting Yes No

√

==========================================

STATE OF GUJARAT

Versus

PRABHUBHAI PUJABHAI NAT & ORS.

==========================================

Appearance:

MS JYOTI BHATT APP for the Appellant(s) No. 1

ABATED for the Opponent(s)/Respondent(s) No. 1

BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s)

No. 2,3,4

RULE UNSERVED for the Opponent(s)/Respondent(s) No. 2,3,4

==========================================

CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

Date : 19/08/2026

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 08.10.2008 passed by the learned Special

Judge (N.D.P.S.) Himmatnagar, Camp at Idar (hereinafter be referred

to as “the Special Judge”) in Special (NDPS) Case No. 1 of 2006,

whereby the trial Court has acquitted the original accused

Page 1 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

(respondents herein) from the offences punishable under Sections

8(c), 20(B) and 29 etc of the Narcotic Drugs and Psychotropic

Substances Act, 1985 [hereinafter be referred to as “the Act”].

2.The facts of the present case are that on 30.10.2005, one

Virchandbhai Kanjibhai was carrying out checking in luxury bus

coming from Rajasthan bearing registration No. RJ 14-1-P-5758 from

which one passenger tried to hide his bag and on scrutiny of the bag,

contraband article i.e. Ganja weighed about 2 kilo 600 gram for the

purpose of selling without any pass or permit, came to be seized and

other accused made support in carrying the said article and therefore

they have committed an offence punishable under Sections 8(c),

20(B) and 29 of the Act. Pursuant thereto, complaint being C.R.No.II –

90/2005 came to be registered at Shamlaji Police Station. After

completion of the investigation, a chargesheet was filed against the

accused.

2.1The charge against the accused came to be framed by the trial

Court vide Exhibit 7 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 learned

Special Judge.

3.It appears from the records that to prove the case, the

prosecution has examined the witnesses 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

Page 2 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

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 at length. Though served, the accused

have chosen not to appear before the Court.

8.Ms.Bhatt, learned Additional Public Prosecutor for the appellant

has submitted that the impugned judgment and order of acquittal

passed by the Trial Court is contrary to law and the evidence available

on record. She has submitted that the Trial Court erred in holding that

the prosecution had failed to prove its case beyond reasonable doubt.

She has submitted that the contraband articles were found in the

custody of respondent No.1, whereas, respondents No.2, 3 and 4 were

driver and cleaner of the bus bearing registration No. RJ 14-1-P-5758

and the bus was intercepted at the check post near Ratanpur at that

time respondent No.1 was suspected and during the course of

examination by the complainant – police constable, the contraband

article namely ganja was found from the bag which was carried by

respondent No.1. She has submitted that the complainant –

Pramodchandra along with one unarmed constable Virchand have

taken the accused to nearby police station i.e. Shamlaji Police Station.

Page 3 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

The complainant has registered the complaint and in presence of the

PSI, the complainant informed the concerned C.P.I. of Bhiloda who

was the Incharge of the Police Station but since he was on leave

therefore the Dy.S.P., Khedbrahma was informed and he was reached

to the place and in his presence, all the formalities were carried out

by the Investigating Officer and, therefore, the evidence was collected

and after found sufficient material, the prosecution has filed the

charge-sheet against the accused.

8.1Ms.Bhatt, learned Additional Public Prosecutor for the appellant

has submitted that the prosecution examined several witnesses

including two panchas and also produced the documentary evidence,

except panchas, the prosecution witnesses have supported the case

and through the documentary evidence, the prosecution has led the

evidence to prove the charge against the accused, however, without

proper appreciation oral as well as documentary evidence, the trial

Court erroneously passed the impugned judgment and order of

acquittal.

8.2Ms.Bhatt, learned Additional Public Prosecutor for the appellant

has submitted that the Trial Court erred in holding that the

prosecution had failed to prove the charge beyond reasonable doubt

against the accused and, therefore, the impugned judgment and

order of acquittal recorded by the Trial Court, which deserves to be

quashed and set aside and the appeal deserves to be allowed.

8.3Ms.Bhatt, learned Additional Public Prosecutor for the appellant

has submitted that the prosecution has led the evidence which

supports the case of the prosecution and thereby the case was proved

beyond reasonable doubt against the accused, however, the Trial

Page 4 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

Court has not considered the same in its true and proper perspective.

She has further submitted that the prosecution has led the evidence

to the effect that the respondent, who was culprit and from whose

possession the contraband articles namely ganja weighing 2-kilogram

600 gram found from the different bags carried by accused No.1.

However, Ms.Bhatt, learned Additional Public Prosecutor fairly

admitted that so far as respondents No.2, 3 and 4 are concerned,

neither there was material found from their possession nor from the

vehicle, however, the Trial Court has committed serious error of facts

and law in passing the impugned judgment and order of acquittal.

8.4Ms.Bhatt, learned Additional Public Prosecutor has submitted

that the Trial Court has committed an error in holding that the

accused cannot be charged for the alleged offences of the Act,

despite sufficient evidence establishing the conscious and illegal

possession of the contraband articles of the accused. She has

submitted that P.W.1 – Pramodchandra Sukhdevprasad Pandya and

P.W.2 Virchandbhai Kavjibhai i.e. complainant and accompanied

witnesses, from whose evidence, it was established that accused No.1

was found with contraband articles during inspection and it was

seized from accused No.1 and their evidence were duly corroborated

by the other oral as well as documentary evidence, however, the Trial

Court has, without appreciating the said evidence in its true and

proper perspective, discarded the evidence of those witnesses on the

ground that since panchas have not supported the recovery of

muddamal from the possession of accused No.1, it was supported by

the evidence of the police witnesses and, therefore, it cannot be

ignored and discarded by the Trial Court.

Page 5 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

8.5In view of the cogent and reliable oral and documentary

evidence, Ms.Bhatt, learned Additional Public Prosecutor has

submitted that the Trial Court ought not to have acquitted the

accused. The findings recorded in the impugned judgment are

contrary to the evidence on record and suffer from serious errors of

appreciation. It is, therefore, submitted that the judgment and order

of acquittal deserves to be quashed and set aside by this Court.

9.Though served, the respondents have chosen not to appear

before the Court and in absence of the submissions on the part of the

respondents, this Court has to look the judgment and order of

acquittal and on perusal of the same and the submissions advanced

by the learned Additional Public Prosecutor and on examining the oral

as well as documentary evidence, this Court has examined the issues

that arises for consideration before this Court for determination are as

under:-

Whether the learned Trial Court committed any error in passing

the impugned judgment and order of acquittal?

Whether the learned Trial Court, while appreciating the

evidence of the prosecution witnesses, has committed any error

of law or fact?

Whether the impugned judgment and order of acquittal suffers

from any illegality or perversity?

10.In light of the aforesaid submissions made by the learned

Additional Public Prosecutor and on perusal of the impugned

judgment and order of acquittal as well as the evidence recorded by

the Trial Court and the issues framed by the Court for determination

are required to be examined in light of the facts and circumstances of

Page 6 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

the present case. If this Court peruses the facts of the present appeal,

it appears that on 30.10.2005, while complainant - P.W.1 and police

constable – P.W.2 serving at Shamlaji Police Station were posted at

Ratanpur Check Post and they were on duty at that time one luxury

bus bearing registration No.RJ-14-1-P-5758 was standing in a queue at

the Check Post, P.W.1 and P.W.2 have checked the said post at that

time passenger sitting on seat No.27 was found in suspicion condition

and he was trying to hide the bag contained contraband article and,

therefore, upon search, it was found that the bag containing

contraband articles was of accused No.1 and, therefore, P.W.1 and

P.W.2 asked the accused that whether he was having any pass or

permit to carry this contraband article upon which he stated that he

had no pass and permit, for which, the complainant asked accused

No.2 and 3 being drivers and accused No.4 being cleaner / conductor

of the bus and all four along with other passengers taken to Ratanpur

Check Post where the complainant immediately informed the PSI,

Shamlaji Police Station and also informed the C.P.I., Bhiloda and since

C.P.I. was not available and hence, the message sent to Dy.S.P.,

Khedbrahma i.e. P.W.6 – Saitansinh Magansinh Chavda about seizure

of contraband article from accused No.1 then panchas were called i.e.

P.W.3 – Rajubhai Kadavabhai Parghi and P.W.4 – Kantibhai Somabhai

Parghi, in whose presence, contraband article was weighing and

weight of the contraband article was approximately 2 kilo 600 gram

and after drawing sample from the said contraband articles, P.W.1

and P.W.2 have completed formalities of the seizure of the muddamal

and, thereafter, the complaint came to be lodged against the

accused.

11.On perusal of the evidence of P.W.1, who was an armed police

Page 7 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

constable, and P.W.2, who was an unarmed police constable, it

appears that they intercepted the bus and, during the course of

checking, suspected accused No.1. Though they were aware that they

were not authorised officers under the Act, they proceeded to search

accused No.1 and thereafter informed the concerned PSI, who was

also not an authorised officer under the Act. Thereafter, P.W.1 and

P.W.2 informed the Dy. S.P., Khedbrahma, who reached the spot after

about one hour, as stated by the witnesses. During the said period, all

the activities relating to weighing, seizing and searching were carried

out by the police constables in the presence of the PSI, i.e. P.W.7. On

perusal of the depositions of P.W.5 – Arjunsinh Javansinh Chauhan,

P.W.6 – Amaraji Bahecharji Desai, and P.W.7 – Saitansinh Magansinh

Chavda, it clearly emerges that, while searching accused No.1, the

police did not follow the procedure prescribed under the Act, which is

mandatory in nature. From the evidence of P.W.5, it emerges that he

specifically admitted that, though he registered the FIR at the behest

of P.W.1 and P.W.7, he did not forward the FIR within 24 hours to the

nearest learned Magistrate. He also did not forward the report to the

higher officer as required under Section 42(2) of the Act, nor did he

intimate the concerned Dy. S.P. regarding the seizure of the

muddamal article and the arrest of the accused. Though the C.P.I. was

present and was in charge of Bhiloda, when a question was put to

P.W.6, he admitted that no charge had been handed over to him by

the Dy. S.P. However, he stated that he had been informed through a

telephonic message and thereafter reached the place of the incident.

12.On perusal of the record and the evidence, it reveals that the

prosecution has not produced any evidence regarding the place

where the muddamal article was weighed or the person by whom it

Page 8 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

was weighed. The prosecution has also not examined the person who

weighed the contraband article or brought on record the place where

it was weighed. Surprisingly, the weight of the contraband article had

already been mentioned in the seizure panchnama at Exhibit 49, even

though no evidence has been produced to establish by whom, at

which place, and in whose presence the contraband article was

weighed. This creates a serious doubt regarding the manner in which

the weight of the contraband article was determined. No evidence

whatsoever has been brought on record regarding the person who

weighed the contraband article, the place where it was weighed, or

the persons who were present at that time.

13.It is admitted by P.W.6 that, when he reached Shamlaji Police

Station, the procedure of drawing the panchnama had already been

completed by P.W.7, P.W.1 and P.W.2. Surprisingly, from the evidence

of P.W.6 and P.W.7, it emerges that it is not brought on record as to

how or by whom P.W.6 was informed about the incident. There is also

no register recording any wireless message or any details of the

telephonic communication. The prosecution has not examined the FSL

expert and has merely produced the FSL report. Thus, the documents

were exhibited without examining their author, which constitutes a

serious lacuna in the prosecution case. It is also a serious lacuna in

the prosecution case that the Investigating Officer, who was not

authorised to investigate the offence, carried out the investigation. It

is admitted by P.W.7 that, initially, the investigation was carried out

by him and, subsequently, by another PSI. However, the said PSI was

not examined by the prosecution to prove its case, for reasons best

known to the prosecution. There are, therefore, serious lacuna in the

investigation. Consequently, after considering the evidence at length,

Page 9 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

the Trial Court recorded cogent reasons as to why the prosecution

case could not be believed. In paragraph 17, the Trial Court recorded

reasons demonstrating how the prosecution had failed to establish

the charge against the accused due to serious lacunae in the

investigation and non-compliance with the mandatory provisions of

Sections 42(2), 50, 55 and 57 of the Act. After referring to the

decisions of the Hon’ble Apex Court, the Trial Court rightly passed the

impugned judgment and order of acquittal.

14.This Court in similar set of facts in Criminal Appeal No. 645 of

2008 filed by the appellant – State of Gujarat decided on 05.08.2026

and dealt with similar provisions of Sections 42, 50, 55 and 57 of the

Act.

15.At this stage, it is appropriate to refer the decision of the Honourable

Apex Court in the case of State of Punjab vs. Balbir Singh reported in

AIR 1994 SC 1872, whereby Hon’ble Apex Court has held as under:-

“Head Note (D) Narcotic Drugs and Psychotropic Substance

Act (61 of 1985), Ss. 50, 41, 42 - Search and Seizure - On

prior information empowered officer acting under S.41(2)

of S.42-Should comply with provisions of S.50-Provisions of

S.50 are mandatory.

17. One another important question that arises for

consideration is whether failure to comply with the

conditions laid down in Section 50 of the NDPS Act by the

empowered or authorised officer while conducting the

search, affects the prosecution case. The said provision

(Section 50) lays down that any officer duly authorised

under Section 42, who is about to search any person under

the provisions of Sections 41, 42 and 43, shall, if such

person so requires, take him without unnecessary delay to

the nearest Gazetted Officer of any of the departments

mentioned in Section 42 or to the nearest Magistrate and if

such requisition is made by the person to be searched, the

authorised officer concerned can detain him until he can

produce him before such Gazetted Officer or the

Page 10 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

Magistrate. After such production, the Gazetted Officer or

the Magistrate, if sees no reasonable ground for search,

may discharge the person. But otherwise he shall direct

that the search be made. To avoid humiliation to females,

it is also provided that no female shall be searched by

anyone except a female. The words "if the person to be

searched so desires" are important. One of the submissions

is whether the person who is about to be searched should

by himself make a request or whether it is obligatory on

the part of the empowered or the authorised officer to

inform such person that if he so requires, he would be

produced before a Gazetted Officer or a Magistrate and

thereafter the search would be conducted. In the context in

which this right has been conferred, it must naturally be

presumed that it is imperative on the part of the officer to

inform the person to be searched of his right that if he so

requires to be searched before a Gazetted Officer or a

Magistrate. To us, it appears that this is a valuable right

given to the person to be searched in the presence of a

Gazetted Officer or a Magistrate if he so requires, since

such a search would impart much more authenticity and

creditworthiness to the proceedings while equally providing

an important safeguard to the accused. To afford such an

opportunity to the person to be searched, he must be

aware of his right and that can be done only by the

authorised officer informing him. The language is clear and

the provision implicitly makes it obligatory on the

authorised officer to inform the person to be searched of

his right.

21. In Miranda v. Arizona17 the Court, considering the

question whether the accused be apprised of his right not

to answer and keep silent while being interrogated by the

police, observed thus :

"At the outset, if a person in custody is to be subjected to

interrogation, he must first be informed in clear and

unequivocal terms that he has the right to remain silent.

For those unaware of the privilege, the warning is needed

simply to make them aware of it the threshold requirement

for an intelligent decision as to its exercise. More

important, such a warning is an absolute prerequisite in

overcoming the inherent pressures of the interrogation

atmosphere."

It was further observed thus :

"The warning of the right to remain silent must be

Page 11 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

accompanied by the explanation that anything said can

and will be used against the individual in court. This

warning is needed in order to make him aware not only of

the privilege, but also of the consequences of foregoing it.

It is only through an awareness of these consequences that

there can be any assurance of real understanding and

intelligent exercise of the privilege. Moreover, this warning

may serve to make the individual more acutely aware that

he is faced with a phase of the adversary system that he is

not in the presence of persons acting solely in his interest."

When such is the importance of a right given to an accused

person in custody in general, the right by way of safeguard

conferred under Section 50 in the context is all the more

important and valuable. Therefore it is to be, taken as an

imperative requirement on the part of the officer intending

to search to inform the person to be searched of his right

that if he so chooses, he will be searched in the presence

of a Gazetted Officer or a Magistrate. Thus the provisions of

Section 50 are mandatory.

25. The question considered above arise frequently before

the trial courts. Therefore we find it necessary to set out

our conclusions which are as follows :

(1) If a police officer without any prior information as

contemplated under the provisions of the NDPS Act makes

a search or arrests a person in the normal course of

investigation into an offence or suspected offences as

provided under the provisions of CrPC and when such

search is completed at that stage Section 50 of the NDPS

Act would not be attracted and the question of complying

with the requirements thereunder would not arise. If during

such search or arrest there is a chance recovery of any

narcotic drug or psychotropic substance then the police

officer, who is not empowered, should inform the

empowered officer who should thereafter proceed in

accordance with the provisions of the NDPS Act. If he

happens to be an empowered officer also, then from that

stage onwards, he should carry out the investigation in

accordance with the other provisions of the NDPS Act.

(2-A) Under Section 41(1) only an empowered Magistrate

can issue warrant for the arrest or for the search in respect

of offences punishable under Chapter IV of the Act etc.

when he has reason to believe that such offences have

been committed or such substances are kept or concealed

Page 12 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

in any building, conveyance or place. When such warrant

for arrest or for search is issued by a Magistrate who is not

empowered, then such search or arrest if carried out would

be illegal.

Likewise only empowered officers or duly authorized

officers as enumerated in Sections 41(2) and 42(1) can act

under the provisions of the NDPS Act. If such arrest or

search is made under the provisions of the NDPS Act by

anyone other than such officers, the same would be illegal.

(2-B) Under Section 41(2) only the empowered officer can

give the authorisation to his subordinate officer to carry out

the arrest of a person or search as mentioned therein. If

there is a contravention, that would affect the prosecution

case and vitiate the conviction.

(2-C) Under Section 42(1) the empowered officer if has a

prior information given by any person, that should

necessarily be taken down in writing. But if he has reason

to believe from personal knowledge that offences under

Chapter IV have been committed or materials which may

furnish evidence of commission of such offences are

concealed in any building etc. he may carry out the arrest

or search without a warrant between sunrise and sunset

and this provision does not mandate that he should record

his reasons of belief. But under the proviso to Section 42(1)

if such officer has to carry out such search between sunset

and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and

contravention of the same would affect the prosecution

case and vitiate the trial.

(3) Under Section 42(2) such empowered officer who takes

down any information in writing or records the grounds

under proviso to Section 42(1) should forthwith send a

copy thereof to his immediate official superior. If there is

total non-compliance of this provision the same affects the

prosecution case. To that extent it is mandatory. But if

there is delay whether it was undue or whether the same

has been explained or not, will be a question of fact in each

case.

(4-A) If a police officer, even if he happens to be an

"empowered" officer while effecting an arrest or search

during normal investigation into offences purely under the

Page 13 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

provisions of Cr. PC fails to strictly comply with the

provisions 'of Sections 100 and 165 Cr. PC including the

requirement to record reasons, such failure would only

amount to an irregularity.

(4-B) If an empowered officer or an authorised officer under

Section 41(2) of the Act carries out a search, he would be

doing so under the provisions of Cr. PC namely Sections

100 and 165 Cr. PC and if there is no strict compliance with

the provisions of Cr. PC then such search would not per se

be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by the

courts while appreciating the evidence in the facts and

circumstances of each case.

(5) On prior information the empowered officer or

authorised officer while acting under Sections 41(2) or 42

should comply with the provisions of Section 50 before the

search of the person is made and such person should be

informed that if he so requires, he shall be produced before

a Gazetted Officer or a Magistrate as provided thereunder.

It is obligatory on the part of such officer to inform the

person to be searched. Failure to inform the person to be

searched and if such person so requires, failure to take him

to the Gazetted Officer or the Magistrate, would amount to

non-compliance of Section 50 which is mandatory and thus

it would affect the prosecution case and vitiate the trial.

After being so informed whether such person opted for

such a course or not would be a question of fact.

(6) The provisions of Sections 52 and 57 which deal with

the steps to be taken by the officers after making arrest or

seizure under Sections 41 to 44 are by themselves not

mandatory. If there is non-compliance or if there are lapses

like delay etc. then the same has to be examined to see

whether any prejudice has been caused to the accused and

such failure will have a bearing on the appreciation of

evidence regarding arrest or seizure as well as on merits of

the case

16.In the decision in case of Karnail Singh v. State of Haryana,

(2009) 8 SCC 539, the Hon’ble Apex Court has held as under:-

“(6) In the light of the above decisions and the principles

enunciated therein, it would be appropriate to refer to

Page 14 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

Section 42 of the NDPS Act which is relevant for the

present purpose as it stood before its amendment by Act 9

of 2001. It reads as under:-

"42. Power of entry, search, seizure and arrest without

warrant or authorisation.-- (1) Any such officer (being an

officer superior in rank to a peon, sepoy or constable) of

the departments of central excise, narcotics, customs,

revenue intelligence or any other department of the

Central Government or of the Border Security Force as is

empowered in this behalf by general or special order by the

Central Government, or any such officer (being an officer

superior in rank to a peon, sepoy or constable) of the

revenue, drugs control, excise, police or any other

department of a State Government as is empowered in this

behalf by general or special order of the State Government,

if he has reason to believe from personal knowledge or

information given by any person and taken down in writing

that any narcotic drug, or psychotropic substance, in

respect of which an offence punishable under Chapter IV

has been committed or any document or other article

which may furnish evidence of the commission of such

offence is kept or concealed in any building, conveyance or

enclosed place, may, between sunrise and sunset,--

(a) enter into and search any such building, conveyance or

place;

(b) in case of resistance, break open any door and remove

any obstacle to such entry;

(c) seize such drug or substance and all materials used in

the manufacture thereof and any other article and any

animal or conveyance which he has reason to believe to be

liable to confiscation under this Act and any document or

other article which he has reason to believe may furnish

evidence of the commission of any offence punishable

under Chapter IV relating to such drug or substance; and

(d) detain and search, and, if he thinks proper, arrest any

person whom he has reason to believe to have committed

any offence punishable under Chapter IV relating to such

drug or substance:

Provided that if such officer has reason to believe that a

search warrant or authorisation cannot be obtained without

affording opportunity for the concealment of evidence or

Page 15 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

facility for the escape of an offender, he may enter and

search such building, conveyance or enclosed place at any

time between sunset and sunrise after recording the

grounds of his belief.

(2) Where an officer takes down any information in writing

under sub-section (1) or records grounds for his belief

under the proviso thereto, he shall forthwith send a copy

thereof to his immediate official superior."

Sub-section (2) as replaced by Act 9 of 2001 is extracted

below:

"(2) Where an officer takes down any information in writing

under sub-Section (1) or records grounds for his belief

under the proviso thereto, he shall within seventy two

hours send a copy thereof to his immediate official

superior."

15) Under Section 42(2) as it stood prior to amendment

such empowered officer who takes down any information in

writing or records the grounds under proviso to Section

42(1) should forthwith send a copy thereof to his

immediate official superior. If there is total non-compliance

of this provision the same would adversely affect the

prosecution case and to that extent it is mandatory. But if

there is delay whether it was undue or whether the same

has been explained or not, will be a question of fact in each

case, it is to be concluded that the mandatory enforcement

of the provisions of Section 42 of the Act non-compliance of

which may vitiate a trial has been restricted only to the

provision of sending a copy of the information written down

by the empowered officer to immediate official superior

and not to any other condition of the Section. Abdul Rashid

(supra) has been decided on 01.02.2000 but thereafter

Section 42 has been amended with effect from 02.10.2001

and the time of sending such report of the required

information has been specified to be within 72 hours of

writing down the same. The relaxation by the legislature is

evidently only to uphold the object of the Act. The question

of mandatory application of the provision can be answered

in the light of the said amendment. The non-compliance of

the said provision may not vitiate the trial if it does not

cause any prejudice to the accused.

17. In conclusion, what is to be noticed is Abdul Rashid did

not require literal compliance with the requirements of

Page 16 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

Sections 42(1) and 42(2) nor did Sajan Abraham hold that

the requirements of Section 42(1) and 42(2) need not be

fulfilled at all. The effect of the two decisions was as

follows :

(a) The officer on receiving the information (of the nature

referred to in Sub-section (1) of section

42) from any person had to record it in writing in the

concerned Register and forthwith send a copy to his

immediate official superior, before proceeding to take

action in terms of clauses (a) to (d) of section 42(1).

(b) But if the information was received when the officer

was not in the police station, but while he was on the move

either on patrol duty or otherwise, either by mobile phone,

or other means, and the information calls for immediate

action and any delay would have resulted in the goods or

evidence being removed or destroyed, it would not be

feasible or practical to take down in writing the information

given to him, in such a situation, he could take action as

per clauses (a) to (d) of section 42(1) and thereafter, as

soon as it is practical, record the information in writing and

forthwith inform the same to the official superior .

(c) In other words, the compliance with the requirements of

Sections 42 (1) and 42(2) in regard to writing down the

information received and sending a copy thereof to the

superior officer, should normally precede the entry, search

and seizure by the officer. But in special circumstances

involving emergent situations, the recording of the

information in writing and sending a copy thereof to the

official superior may get postponed by a reasonable period,

that is after the search, entry and seizure. The question is

one of urgency and expediency.

(d) While total non-compliance of requirements of sub-

sections (1) and (2) of section 42 is impermissible, delayed

compliance with satisfactory explanation about the delay

will be acceptable compliance of section 42. To illustrate, if

any delay may result in the accused escaping or the goods

or evidence being destroyed or removed, not recording in

writing the information received, before initiating action, or

non-sending a copy of such information to the official

superior forthwith, may not be treated as violation of

section 42. But if the information was received when the

police officer was in the police station with sufficient time

Page 17 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

to take action, and if the police officer fails to record in

writing the information received, or fails to send a copy

thereof, to the official superior, then it will be a suspicious

circumstance being a clear violation of section 42 of the

Act. Similarly, where the police officer does not record the

information at all, and does not inform the official superior

at all, then also it will be a clear violation of section 42 of

the Act. Whether there is adequate or substantial

compliance with section 42 or not is a question of fact to be

decided in each case. The above position got strengthened

with the amendment to section 42 by Act 9 of 2001”.

17.In the decision in case of Vijaysinh Chandubha Jadeja vs.

State of Gujarat reported in 2011(1) SCC 609, the Hon’ble Apex

Court has held as under:-

“18.Although the Constitution Bench did not decide in

absolute terms the question whether or not Section 50 of

the NDPS Act was directory or mandatory yet it was held

that provisions of sub-section (1) of Section 50 make it

imperative for the empowered officer to "inform" the

person concerned (suspect) about the existence of his right

that if he so requires, he shall be searched before a

gazetted officer or a Magistrate; failure to "inform" the

suspect about the existence of his said right would cause

prejudice to him, and in case he so opts, failure to conduct

his search before a gazetted officer or a Magistrate, may

not vitiate the trial but would render the recovery of the

illicit article suspect and vitiate the conviction and

sentence of an accused, where the conviction has been

recorded only on the basis of the possession of the illicit

article, recovered from the person during a search

conducted in violation of the provisions of Section 50 of the

NDPS Act. The Court also noted that it was not necessary

that the information required to be given under Section 50

should be in a prescribed form or in writing but it was

mandatory that the suspect was made aware of the

existence of his right to be searched before a gazetted

officer or a Magistrate, if so required by him. We

respectfully concur with these conclusions. Any other

interpretation of the provision would make the valuable

right conferred on the suspect illusory and a farce.

19.As noted above, sub-sections (5) and (6) were inserted

Page 18 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

in Section 50 by Act 9 of 2001. It is pertinent to note that

although by the insertion of the said two sub-sections, the

rigour of strict procedural requirement is sought to be

diluted under the circumstances mentioned in the sub-

sections, viz. when the authorised officer has reason to

believe that any delay in search of the person is fraught

with the possibility of the person to be searched parting

with possession of any narcotic drug or psychotropic

substance etc., or article or document, he may proceed to

search the person instead of taking him to the nearest

gazetted officer or Magistrate. However, even in such

cases a safeguard against any arbitrary use of power has

been provided under sub-section (6). Under the said sub-

section, the empowered officer is obliged to send a copy of

the reasons, so recorded, to his immediate official superior

within seventy two hours of the search. In our opinion, the

insertion of these two sub-sections does not obliterates the

mandate of sub-section (1) of Section 50 to inform the

person, to be searched, of his right to be taken before a

gazetted officer or a Magistrate. The object and the effect

of insertion of sub-sections (5) and (6) were considered by

a Constitution Bench of this Court, of which one of us (D.K.

Jain, J.) was a member, in Karnail Singh Vs. State of

Haryana13. Although in the said decision the Court did

observe that by virtue of insertion of sub-sections (5) and

(6), the mandate given in Baldev Singh's case (supra) is

diluted but the Court also opined that it cannot be said that

by the said insertion, the protection or safeguards given to

the suspect have been taken away completely. The Court

observed :-

"Through this amendment the strict procedural

requirement as mandated by Baldev Singh case was

avoided as relaxation and fixing of the reasonable time to

send the record to the superior official as well as exercise

of Section 100 CrPC was included by the legislature. The

effect conferred upon the previously mandated strict

compliance with Section 50 by Baldev Singh case was that

the procedural requirements which may have handicapped

an emergency requirement of search and seizure and give

the suspect a chance to escape were made directory based

on the reasonableness of such emergency situation.

Though it cannot be said that the protection or safeguard

given to the suspects have been taken away completely

but certain flexibility in the procedural norms were adopted

only (2009) 8 SCC 539 to balance an urgent situation. As a

consequence the mandate given in Baldev Singh case is

Page 19 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

diluted."

22.In view of the foregoing discussion, we are of the firm

opinion that the object with which right under Section 50(1)

of the NDPS Act, by way of a safeguard, has been conferred

on the suspect, viz. to check the misuse of power, to avoid

harm to innocent persons and to minimise the allegations

of planting or foisting of false cases by the law

enforcement agencies, it would be imperative on the part

of the empowered officer to apprise the person intended to

be searched of his right to be searched before a gazetted

officer or a Magistrate. We have no hesitation in holding

that in so far as the obligation of the authorised officer

under sub-section (1) of Section 50 of the NDPS Act is

concerned, it is mandatory and requires a strict

compliance. Failure to comply with the provision would

render the recovery of the illicit article suspect and vitiate

the conviction if the same is recorded only on the basis of

the recovery of the illicit article from the person of the

accused during such search. Thereafter, the suspect may

or may not choose to exercise the right provided to him

under the said provision. As observed in Re Presidential

Poll14, it is the duty of the courts to get at the real

intention of the Legislature by carefully attending to the

whole scope of the provision to be construed. "The key to

the opening of every law is the reason and spirit of the law,

it is the animus imponentis, the intention of the law maker

expressed in the law itself, taken as a whole." We are of

the opinion that the concept of "substantial compliance"

with the requirement of Section 50 of the NDPS Act

introduced and read into the mandate of the said Section in

Joseph Fernandez (supra) and Prabha Shankar Dubey

(supra) is neither borne out from the language of sub-

section (1) of Section 50 nor it is in consonance with the

dictum laid down in Baldev Singh's case (supra). Needless

to add that the question whether or not the procedure

prescribed has been followed and the requirement of

Section 50 had been met, is a matter of trial. It would

neither be possible nor feasible to lay down any absolute

formula in that behalf. We also feel that though Section 50

gives an option to the empowered officer to take such

person (suspect) either before the nearest gazetted officer

or the Magistrate but in order to impart authenticity,

transparency and creditworthiness to the entire

proceedings, in the first instance, an endeavour should be

to produce the suspect before the nearest Magistrate, who

enjoys more confidence of (1974) 2 SCC 33 the common

Page 20 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

man compared to any other officer. It would not only add

legitimacy to the search proceedings, it may verily

strengthen the prosecution as well.”

18.In the decision in case of State of Himachal Pradesh vs. Surat

Singh reported in 2026 (0) AIJEL SC 76708 the Hon’ble Apex Court has

held as under:-

“18. Their lordships of the Hon'ble Supreme Court in the case of

Suresh and others versus State of Madhya Pradesh, reported in

(2013) 1 SCC 550, have held that in a case where the accused

were merely asked whether they would offer their personal

search to police officer concerned or to gazetted officer and the

appellants gave their consent for their personal search by police

officer concerned, it will amount to non-compliance of Section

50(1) of the ND & PS Act. Their lordships have held as follows:

"16) The above Panchnama indicates that the appellants were

merely asked to give their consent for search by the police party

and not apprised of their legal right provided under Section 50 of

the NDPS Act to refuse/to allow the police party to take their

search and opt for being searched before the Gazetted officer or

by the Magistrate. In other words, a reading of the Panchnama

makes it clear that the appellants were not apprised about their

right to be searched before a gazetted officer or a Magistrate but

consent was sought for their personal search. Merely asking

them as to whether they would offer their personal search to

him, i.e. the police officer or to gazetted officer may not satisfy

the protection afforded under Section 50 of the NDPS Act as

interpreted in Baldev singh's case.

17. Further a reading of the judgments of the trial Court and the

High Court also show that in the presence of Panchas, the SHO

merely asked all the three appellants for their search by him and

they simply agreed. This is reflected in the Panchnama. Though

in Baldev Singh's case, this Court has not expressed any opinion

as to whether the provisions of Section 50 are mandatory or

directory but "failure to inform" the person concerned of his right

as emanating from sub-section (1) of Section 50 may render the

recovery of the contraband suspect and the conviction and

sentence of an accused bad and unsustainable in law. In

Vijaysinh Chan Jadeja's case (supra), recently the Constitution

Bench has explained the mandate provided under sub-section

(1) of Section 50 and concluded that it is mandatory and

requires strict compliance. The Bench also held that failure to

comply with the provision would render the recovery of the illicit

article suspect and vitiate the conviction if the same is recorded

only on the basis of the recovery of the illicit article from the

Page 21 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

person of the accused during such search. The concept of

substantial compliance as noted in Joseph Fernadez (supra) and

Prabha Shankar Dubey (supra) were not acceptable by the

Constitution Bench in Vijaysinh Chandubha Jadeja, accordingly,

in view of the language as evident from the panchnama which

we have quoted earlier, we hold that, in the case on hand, the

search and seizure of the suspect from the person of the

appellants is bad and conviction is unsustainable in law."

18. Their lordships of the Hon'ble Supreme Court in case of State

of Rajasthan versus Parmanand and another, reported in (2014)

5 SCC 345, have held that if merely a bag is carried by person is

searched without there being any search of his person, S. 50 will

have no application but if bag carried by him is searched and his

person is also searched, S. 50 would be attracted. Their lordships

have also held that it was improper for PW-10 S.I. "Q" to tell

respondents that a third alternative was available. It has been

held as follows:

15. “Thus, if merely a bag carried by a person is searched

without there being any search of his person, Section 50 of the

NDPS Act will have no application. But if the bag carried by him

is searched and his person is also searched, Section 50 of the

NDPS Act will have application. In this case, respondent No.1

Parmanand's bag was searched. From the bag, opium was

recovered. His personal search was also carried out. Personal

search of respondent No.2 Surajmal was also conducted.

Therefore, in light of judgments of this Court mentioned in the

preceding paragraphs, Section 50 of the NDPS Act will have

application.”

19.It is also worthwhile to refer the decision of the Hon’ble Apex

Court in case of State of Rajasthan vs. Jag Raj Singh reported in

2016 (11) SCC 687 and in the case of Boota Singh vs. State of

Haryana reported in 2021 (19) SCC 606 whereby in similar set of

facts the Hon’ble Apex Court has deal with Sections 42, 43 and 50 of

the NDPS Act.

20.Thus, the basic requirement under Section 42(2) as laid down

under the Act r/w. Sections 55 and 57 of the Act was also not

complied with in the present case at the time of conducting the

search of the present respondent No.1 in the presence of the panch

Page 22 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

witnesses. There is no evidence on record to establish that the

respondent was informed of his right to have his search conducted in

the presence of a Gazetted Officer or a Magistrate, as required under

the said provision. From the evidence of none of the witnesses does it

emerge that the mandatory requirement under Section 50 of the

NDPS Act was duly complied with. Mere denial by the present

respondent cannot dispense with the statutory requirement. The

concerned authority was required to inform the respondent of his

legal right and, if he so desired, to produce him before the nearest

Gazetted Officer or Magistrate, as observed by the Hon'ble Apex Court

in the decisions referred to hereinabove.

21.Even prima facie on perusal of the panchnama of the seizure of

Mudammal and the report of the chemical analyzer also creates a

doubt that whether the actually it was a ganja or not as it is provided

under the provision of Section 2 (iii)(b) of the NDPS Act, which reads

as under:-

“2. (iii) “cannabis (hemp)” means—

(a) xxxxxxxxx

(b) ganja, that is, the flowering or fruiting tops of the

cannabis plant (excluding the seeds and leaves when not

accompanied by the tops), by whatever name they may be

known or designated”

22.Now, upon perusal of the provisions of Section 2(b) of the NDPS

Act and considering the evidence of the witnesses vis-à-vis the

panchnama, it is not established with certainty as to whether the

actual muddamal seized from the possession of the respondent was

ganja or hemp. There is no specific opinion of the Chemical Analyser

on record establishing that the seized substance was ganja. In fact, it

Page 23 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

was mentioned that it was a leaf, fruits and therefore after

considering all this fact, it is not proved by the prosecution in its true

and proper perspective.

23.In view of the aforesaid circumstances, the Trial Court recorded

a finding that the prosecution had failed to establish the basic

ingredients of the offence against the present respondent. After

considering the evidence on record and relying upon the decisions

referred to in the impugned judgment, the Trial Court recorded cogent

reasons and ultimately passed the impugned judgment and order of

acquittal. Even, the Trial Court has observed that the prosecution has

not complied with the mandatory provisions namely Sections 42(1)(2),

50, 55 and 57 of the NDPS Act and after referring the decisions of the

Hon’ble Apex Court has rightly passed the impugned judgment and

order of acquittal.

24.Further, on perusal of the record of the appeal, it transpires that

the respondent-accused has established his innocence before the Trial

Court and that, after due appreciation of the oral as well as

documentary evidence and other material placed on record, the Trial

Court has rightly passed the impugned judgment and order of

acquittal. The findings recorded by the Trial Court are just, proper and

in accordance with the settled principles of law and, therefore, no

interference is warranted by this Court.

25.It is well settled by catena of decisions that the 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

Page 24 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

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.

26.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 he is charged.

27.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.

Page 25 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

42 and 43, which was subsequently re-affirmed by the Hon’ble Apex

Court 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, I am in complete

agreement with the findings recorded by the trial Court.

28.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

Page 26 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

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.”

29.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

Page 27 of 28

R/CR.A/122/2009 JUDGMENT DATED: 19/08/2026

alleged crime. Therefore, the accused cannot be convicted on the

evidence on record.

30.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.

31.In view of the above, the 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)

V.R. PANCHAL

Page 28 of 28