CR.A/545/1988 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 545 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = STATE OF GUJRAT - Appellant Versus PRATIPAL SINH @ KANIYASINH – Respondent ========================================= = Appearance : MS META PANCHAL ADDL PUBLIC PROSECUTOR for Appellant: 1, MR BS SUPESIA for Respondent : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 11/07/2008 CR.A/545/1988 2/4 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal is filed by the State of Gujarat against the acquittal recorded by learned Additional Sessions Judge, Junagadh acquitting the present respondent -accused for the offences punishable under Sections 66-B & 65-E of the Prohibition Act and under Section 20-B of the Narcotic Drugs & Psychotropic Substance Act (hereinafter referred to as 'NDPS Act' for short). 2. The case of the prosecution is that on 21.3.1987 at about 23-00 hrs. the accused was apprehended in a room No.3 of Ashok Guest House and Charas weighing 4 Kg was recovered from the accused person. 3. In support of the prosecution, the prosecution has examined the following witnesses: (i) PW-1 Dosh Mohmmad Allarakha, in whose presence the muddamal was seized and he turned hostile. (ii) PW-8 – Piyush Vallabh Joshi, a Manager of Ashok Guest House. He has stated that he was not present on the place of incident. (iii)The most important witness is PW-6 – Harjivan Keshavlal Patel – PSI. He stated that he has received the information and he prepared preliminary panchnama and conducted search. Through his testimony, who was the CR.A/545/1988 3/4 JUDGMENT most important witness and who was a search witness, he admitted in his examination that he has not followed the mandatory provision of Section 42 of the NDPS Act and on the basis of his admission and other circumstances, the learned Additional Sessions Judge was of the opinion that there is no evidence to show that Sections 42 to 50 of the NDPS Act were complied. Learned Additional Sessions Judge was of the opinion that Sections 42 to 50 have not been complied with and therefore, there was a gross-violation of mandatory provisions of the Act and as per settled law, non-compliance of the said sections vitiate the trial and acquitted the respondent accused. 4. The aforesaid observations of the learned Additional Sessions Judge appear to us to be in consonance with law on the land and on that count, we do not find any illegality committed by learned trial Judge in acquitting the respondent – accused. When there is non-compliance of Sections 42 to 50 of the NDPS Act and the Investigating Officer himself has admitted that he has not followed the mandatory provisions of law, we do not find any reason to interfere with the findings recorded by the learned trial Judge in acquitting the accused. We do not find any infirmity or illegality in the findings recorded by the trial Judge. Therefore, no case for interference in appeal is made out. 5. In the result, the appeal fails. Hence, the appeal is dismissed. Bail bond stands cancelled. CR.A/545/1988 4/4 JUDGMENT 6. Office is directed to sent the record and proceedings to the trial Court forthwith. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) pallav