STATE OF GUJARAT vs GAFURKHAN @ JADUGAR S.PATHAN & ANR.

By means of filing this Appeal under Section 378 of

the Code of Criminal Procedure, 1973, the appellant-

State of Gujarat has challenged the judgment and order

of acquittal dated 13th January 1994 passed by the

learned Additional Sessions Judge, Vadodara in NDPS

Case No. 30 of 1992 whereby the respondents-accused

have been discharged from the offence punishable

under Section 20 [b](2) and 29 of the Narcotic Drugs &

Psychotropic Substances Act, 1985 [" NDPS Act " for

short].

At the outset, it is required to be noted that by

virtue of Oral Order dated 21st September 2015, this

Appeal stood dismissed as having been abated qua the

respondent no. 1-Gaffar Khan alias Jadugar Sattarkhan

Pathan, on a statement made at the bar by Shri B.R

Parikh, learned advocate appearing on behalf of the

said respondent.

Brief facts of the prosecution case are that, when

Shri Pravinchandra Balkrushna Upadhaya was serving

as a Police Inspector, D.C.C. Police Station, Vadodara,

on 02nd August 1992, he received an information at

about 07:30 to 08:00 O''clock in the night that one

Jadugar alias Gaffar does the business of selling

"Charas" in Nawabvada and the same is kept in the

house of one Banubibi. Thereafter, first of all, the

information was confirmed and on finding the same to

be correct, panchas were called. A lady constable

named Bibiben was called by making a phone call to

the City Police station, Vadodara. Thereafter, a primary

panchnama in that regard was drawn and panchas

were asked to search each other physically, wherein

nothing objectionable was found. Thereafter, he

informed his senior officer and an entry in this regard

was made in the station diary. After taking seal, lac,

threads and other articles necessary to conduct the

raid, he left the premises in his vehicle and one another

vehicle was deployed for staff and panchas. On

reaching near Ravpura School No-1, he made both the

vehicles to stop there and again explained the modus

of raid before his staff members. Thereafter, he sent

half of the persons of the police party with PSI J.T. Rana.

Whereas, he formed his own separate team with the

remaining police personnels which also includes PSI

Shri C.D. Jadeja. Shri J. T. Rana was instructed to keep

watch on the house of Banubibi along with his team.

Whereas, he himself, along with his team went to the

house of the accused No-1 Gaffur Khan. On seeing this,

Gaffur Khan came out of his house and started running

away. At that time, Head Constable Fakirbhai Punabhai

identified him and he tried to catch him, but couldn''t

catch the accused. The accused Rammilan Bholanath

Pathak was also there at that time. He was stopped and

his name and address were asked and thereafter, he

was searched physically, wherein small balls of

"Charas" weighing about 50 gms were found from the

pocket of his pant. Apart from that, money was also

recovered from him. Accused Gaffur Khan ran away

after throwing a plastic bag. On searching the same,

"Charas" was found therein. Apart from that, on

searching the house of the accused, some quantity of

Charas was also recovered from the container. Out of

all the aforesaid quantity of recovered Charas, samples

of 100 gms were seized and sealed from the house of

accused Gaffur Khan and from the bag thrown by him.

Whereas, the entire quantity of Charas found from

Rammilan was seized and sealed as sample. Besides

that, electricity bill, ration card., etc were recovered

from the house of accused no.1 and the same were

seized. Having done all the aforesaid procedures, they

went to the house of Banubibi; raid was carried out

there and charas was recovered from a tin box.

Samples of 100 grams each were taken from the same

and they were sealed and remaining charas was sealed.

Electricity bill and ration card recovered from the house

of Banubibi were seized too. Accused Banubibi and

Rammilan Bholanath Pathak were arrested and at that

time, muddamal was seized and panchnama was

drawn. Thereafter, he went to DCB police station and

lodged complaint against the accused Gaffurkhan

Sattarkhan, his wife Amirbibi Gaffurkhan, Banubibi

Habibkhan, Rammilan Bholanath Pathak. Muddamal

and both arrested persons were produced along with

the complaint. PSO lodged an offence on the basis of

the complaint. Thereafter, he intimated his

commissioner Mr. Singh about successful completion of

raid and thereafter, he took over investigation of the

offence. Muddamal samples drawn by him were sent to

FSL for analysis. Remand of the accused Rammilan

Pathak was obtained. Statements of persons with him

in the raid were recorded. He verified at the place

where the accused Mr. Pathak was working. Thereafter,

as he was transferred due to his promotion on 30th

August 1992, the investigation was handed over to PSI

Mr. Jadeja. PSI Mr. Jadeja continued investigation till

14th September 1992 and when Mr. Kantilal Thakorlal

Modi resumed duty as PI at DCB Police Station,

investigation was handed over to him. He sent a write-

up to Vadodara Municipal Corporation Ward officer Mr.

Ravpura on 16th September 1992 about the houses

under the occupancy of Gaffurkhan and Banubibi. He

investigated about the scooter bearing registration

number GJ-6-F-5926 at the RTO office. When Salimmiya

Mustafmiya produced the said scooter on 11th October

1992, the same was seized. Following his order, PSI Mr.

Ramgadhiya caught and produced the accused and he

was arrested on the same day and police remand was

obtained till 18th October 1992. Meanwhile, Amirbibi

was arrested on 14th October 1992. Both the accused

were produced in judicial custody. Thereafter, when

write-up was received from Ravpura Ward Officer about

the occupancy of the house, the same was kept with

the record of investigation. Thereafter, certificate from

FSL was received wherein muddamal was found to be

"charas", the same was kept with the case papers.

Muddamal samples were received from FSL on 16th

October 1992. Charge-sheet was filed against the

accused Gafarkhan Amirbibi, Banubibi and Rammilan,

and whereas, another accused person namely

Mohammad Husen @ Gabbar Gafarkhan could not be

arrested, and hence, he was shown to be absconding

accused in the column no.2 of the charge-sheet.

After providing copy of the police papers to the

accused persons, accused No.2 Amirbibi Gafarkhan

submitted discharge application vide Exhibit-5

requesting to discharge her, as there was no evidence

against her, and whereas, the prosecution submitted

an application vide Exhibit-6 praying to allow it to file

separate charge-sheet, as the muddamal found from

the house of Banubibi and muddamal found from the

house of accused Gafarkhan being for different

offences. Both the above applications have been

granted as per the order passed under them on 06th

March 1993 and accordingly, Amirbibi Gafarkhan has

been discharged from this case. Order has been

passed to file separate charge-sheet against the

accused persons regarding muddamal found from the

house of Banubibi and thereafter it was ordered to try

against the remaining accused persons and as the

charge was framed accordingly vide Exhibit-23, the

accused persons pleaded not guilty by their statements

vide Exhibit-24 and 25 and thereby claimed to be tried.

Hence, the evidence of prosecution was recorded.

Deposition of in all total 11 witnesses from the

prosecution side have been recorded. Prosecution

Witness No.1 Arunkumar Ramanlal Patel, Revenue

Officer working in Vadodara Municipal Corporation has

been examined vide Exhibit-30. PW-2 Bipinbhai Babulal

Darji and PW-3 Mohmed Usman Husen Munshi have

been examined as Panch witnesses vide Exhibit-34 &

46 respectively. PW : 4-Dr. Jagdishkumar Dhanjibhai

Nirmal, Assistant Director, FSL, who analyzed the

samples of muddamal and issued certificate has been

examined vide Exhibit-47. PW-5 Head Constable

Fakirabhai Punabhai has been examined vide Exhibit-

He is a police personnel, who accompanied with the

complainant during the raid. PW-6 P.S.I. Mr. Jagatsinh

Takhtasinh Rana has been examined vide Exhibit-51.

He accompanied with the complainant in the raid and

kept watch over the house of Banubibi. PW-7 PI Shri

Pravinchandra Upadhyay is the complainant, who has

been examined by the prosecution vide Exh. 52. PW-8

Dharmendrasinh Fatesinh has been examined at Exh-

He is Head Constable who was then discharging his

duty as a PSO in D.C.B. Police Station. He had

registered complaint of the complainant and handed

over charge of the said complaint to the complainant.

PW-9 Arjunsinh Raisinh Solanki is a Head Police

Constable, who has been examined at Exh.57. He was

discharging duty as a Crime Writer Head in D.C.B.

Police Station. He had taken over custody of muddamal

and sent the samples to FSL for analysis. PW-10

Dahyabhai Bijalbhai Solanki, who is Head Constable of

DCB Police Station has been examined at Exh-58. He is

a carrier who took over custody of muddamal from

Crime Writer Head and delivered the same at FSL. PW-

11 P.I. Shri Kantilal Thakorlal Modi has been examined

at Ex-62. This officer completed rest of the

investigation of this case and filed charge sheet before

the trial Court. The complaint of the complainant is

produced on the record vide Exh. 53; Seizure

panchnama of contraband charas is placed vide

Exh.35; Seizure panchnama of scooter is at Exh.31; the

letter written by Vadodara Municipal Corporation in

connection with house of the accused Gafarkhan vide

Ex-63; letter regarding the accused Banubibi vide Ex-

64; Order of FSL regarding sending Muddamal vide Ex-

59; office copy of Yadi for sending muddamal vide

Exh.54; receipt issued on receiving the said muddamal

is placed at Exh.55; xerox copy of RC book of the

scooter seized vide Exh.32 and FSL report of Ex.48

have been produced on record. The prosecution has

vide pursis of Exh-63 declared closer of their evidences.

After completion of evidence by the prosecution,

statement under Section 313 CrPC of the accused came

to be recorded below the statements Exh. 24 & 25. The

defence of accused Gafarkhan Satarkhan is that he

does not plead guilty. Whereas, the defence of the

accused Ram milan Bholanath is that he was serving in

Electricity branch in the area of incident. At the time of

incident, as the electricity supply was stopped, he had

gone to repair it. In fact, no charas has been found from

him. At the end of trial, the accused persons were

acquitted from the offence with which they were

charged, giving rise to filing of the present Appeal by

the State

Heard learned advocate Ms. Jirga D Jhaveri,

learned APP appearing on behalf of the appellant-State

and Mr. M.J Bhuddhbhatti, learned advocate appearing

on behalf of the respondent-Rammilan Bholanath

Pathak [original accused no. 2].

Learned APP appearing on behalf of the appellant-

State has taken us through the evidence on record and

submitted that the learned trial Judge has erred in

acquitting the accused though there was ample direct

as well as indirect evidence available on the record

connecting the accused with the crime alleged. That,

the trial Court has erred in discarding the evidence of

complainant, whose evidence gets duly corroborated

with the First Information Report. That, the Court below

has also erred in discarding the evidence of PW-

Fakirbhai; Police Sub-Inspector-Jagatsinh Bana, who

have supported the prosecution version and depicted to

have recovered the muddamal article from the

possession of the accused. That, the trial Court has

erred in acquitting the accused on the ground that

Panchas have not supported the prosecution. That, the

trial Court ought to have relied upon evidence of Police

Officer who were members of the raiding party, as they

have no grudge against the accused persons. That, the

trial Court has given unnecessary weightage to minor

omissions and/or contradictions in the evidence led by

the prosecution, and thereby not properly appreciated

the evidence of prosecution witnesses which otherwise

corroborates with each other. That, the learned trial

Judge has erred in holding that there was breach of

Sections 41 & 42 of the NDPS Act. That, the trial Court

has taken irrelevant facts into consideration, while

appreciating the prosecution evidence and thereby

erred in acquitting the accused.

Lastly, Ms. Jirga Jhaveri, learned APP urged this

Court to allow this Appeal by quashing and setting

aside the impugned judgment and order dated 31st

January 1994 passed by the learned Additional Sessions

Judge, Vadodara acquitting the respondent-accused

from the charge of offence punishable under NDPS Act

in Sessions Case No. 30 of 1992.

Per contra, learned advocate Shri MJ Buddhbhatti

appearing on behalf of the respondent no. 2 strongly

opposed the Appeal preferred by the State and

submitted that as the entire contraband goods was

recovered from the possession of A1-Gafarkhan

Sattarkhan Pathan, who passed away during pendency

of the appeal 8th September 2009, nothing remains

against the present respondent-Ram Milan Pathak; as

evident from the charge framed against them. That,

admittedly, the quantity of "charas" allegedly seized by

the raiding party from the present respondent no.2 was

50.5662 grams, which being too small a quantity to

constitute an offence under the NDPS Act . That, PW-2

Bipinbhai B Darji; PW-3 Mohmed Usman Munshi of

raiding party have not supported the prosecution case

and both of them have turned hostile, as in their cross

examination, they have not supported the prosecution

case. That, the prosecution case is only based on

evidence of PW-4 Dr Jagdishkumar; PW-5 Fakirbhai

Punabhai; PW-6 Jagatsinh T Rana and PW-7

Pravinchandra Balkrishna Upadhyay - members of the

raiding party as well as officers of Forensic Science

Laboratory. That, PSO Mohmed Usman Munshi [PW-8]

has lodged a complaint against the respondents herein.

Admittedly, in the FSL produced on the record by the

prosecution, the weight of contraband article seized is

shown as 50.5662 grams. Statement under Section 313

CrPC was recorded during the course of trial and as per

the statement of the respondent, he was serving in the

Electric Department of the area in which incident took

place. That, point no. 2 for determination was held in

negative by the Court below. That, there was no

compliance of Sections 41 & 42 of the NDPS Act by the

officer incharge of the raiding party. That, the

respondent was searched at the spot and allegedly

found with muddamal. That, documentary evidence

was required to be believed and no cross examination

on this aspect was drawn. That, the seal on the samples

were not tallied, as per the deposition of the

prosecution witnesses and it was found different. That,

Marks "A", "B", "C", "D", "E" was not given to the

panchnama Exh. 33. That, the State Government has

not empowered the Officer-in-charge of the raiding

party to conduct the raid or any special orders were

issued by the State Government in that regard. That,

the provisions of Section 41 of the NDPS Act are

mandatory and must be complied with. If the Officer-in-

charge of the raiding party had any reason to believe

from his personal knowledge or information given by

any person, then he should first take down such

information in writing that such narcotic drugs, or

psychotropic substance, or controlled substance in

respect of which an offence punishable under the Act

has been committed, or any document or other article

which may furnish evidence of the commission of such

offence or any illegally acquired property, or any

document, or other article which may furnish evidence

of holding any illegally acquired property which is liable

for seizure or freezing or forfeiture under Chapter V-A of

the Act is kept or concealed in any building,

conveyance or enclosed place, may at any time

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 [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 the Act. That, the prosecution witnesses have

clearly admitted in cross before the Court below that no

such information was put in writing before the raid was

conducted. That, the prosecution has clearly failed in

establishing the case against the respondents. Hence, it

was requested by him to dismiss the present Appeal.

Before proceeding, it will be useful to recall the

broad principles of law governing the powers of the

High Court under Section 378 of the Code of Criminal

Procedure, 1973, while hearing an appeal against an

order of acquittal passed by a trial Judge. For the sake

of convenience, the law laid down by the Apex Court in

the case of Lalit Kumari, reported in 1991 SCC [Cri.]

382 is aptly quoted hereunder :

"8. Before dealing with the contentions raised by the respective learned counsel, we shall examine whether the judgment of the trial Court was manifestly perverse and wholly unreasonable, compelling the appellate court to step in with the order of acquittal. It is now well settled that the power of appellate court to review evidence in appeals against acquittal is as extensive as its powers in appeals against convictions, but that power is with a note of caution that the appellate Court should be slow in interfering with the orders of acquittal unless there are compelling reasons to do so.

This Court in Mathai Methews v. State of Maharashtra, [1970] 3 SCC 772 has pointed out that :

"5. If a finding reached by the trial Court cannot be said to be an unreasonable finding, then the appellate court should not disturb that finding even if it is possible to reach a different conclusion on the basis of the material on record."

Regarding the power of the appellate court in dislodging a finding of acquittal of a trial court, there are plethora of decisions, but we feel that it is not necessary for us to refer to all those decisions because we are of the firm view that the impugned judgment is liable to be set aside even on the ground that the appellate court has gone wrong in setting aside the order of acquittal on the reappraisal of the available evidence."

Having considered facts of the case, submissions

made by learned APP as well as learned advocate for

the respondent, now the only charge remains against

the present respondent is that when he was searched

by a Police Officer, 22 packets consisting pieces of

charas were found from the pocket of his pant, in

addition of Rs. 220/= cash. As he was asked in respect

of permit for possession of the contraband article

"charas" it was replied by the respondent accused that

he had no permit to possess the same. Weight of

contraband goods was 50 grams, as per the

prosecution case. It is further the case of prosecution

that Head Constable Fakirbhai Punabhai [PW-5]

introduced himself to the accused Gafarkhan Satarkhan

Pathan, who thereafter immediately threw a plastic bag

containing contraband and ran away, and hence, he

could not be arrested. The other person [ie., the

present respondent no. 2] when was trying to escape

from the house, was intercepted by the Police officers

and inquired. He introduced himself as Rammilan

Pathak. He was persuaded about the matter and given

to understand that his personal physical search shall

have to be made. He was offered an option by the

Police Officer as to whether he would like to be

searched by the Police Officers, but he denied to do so

and thereafter, he was searched by the Police Officers

and found that certain packets consisting contraband

charas were found from the pocket of his pant, in

addition to an amount of Rs. 220/=.

Here this Court would like to discuss other

evidences led by the prosecution, but the only material

evidence would be required to be considered. PW-7

Pravinchandra B Upadhyay has admitted in his cross

examination that he had received information in

connection with an offence on 2nd August 1992, but it

was not put in writing on record. Indisputably, the

information received by the witness was in connection

with contraband article "charas" at the residence of the

accused. Further, he has also admitted that the

information received by him was not forwarded to

superior officer. It also appears from the deposition of

PW-5 Fakirbhai Punabhai [Exh. 50]; PW-6 Jagatsinh T

Rana [Exh. 51] and the complainant Shri Pravinchandra

Balkrishna Upadhyay [Exh. 52] that two separate notes

were made by Mr. Upadhyay. A note was made in the

Station Diary to proceed for a raid, but no copy of the

Station Diary was produced on the record by the

prosecution nor any explanation is given in the

evidence by any of the witnesses.

Here, this Court would like to refer to the relevant

provisions of Chapter V of the Act which deals with

procedure to be followed while conducting search,

recovery and seizure. Section 41 of the NDPS Act deals

with power to issue warrant and authorization. The

Officers authorized under sub-section [2] of Section 41,

or the Officers who are further authorized to effect

arrest or search any person have been given same

powers as to an Officer acting under Section 42 of the

NDPS Act. Thus, a Police Officer on whom such powers

have not been conferred by the concerned Government

or who has not been assigned to execute the warrant of

arrest or search cannot arrest such person or search

any building, etc. The other safeguards provided in sub-

section [2] of Section 41 of the NDPS Act is that an

authorized Gazetted Officer can arrest such person or

search any building, etc., under the circumstances

mentioned therein, if he has reason to believe from the

personal knowledge or information given by any person

or taken down in writing. However, in the case of

information supplied by any other person like the secret

informer, he has to take such information in writing. In

other words, it can be well said that the officers of the

gazetted rank duly authorized under sub-section (2) of

Section 41 has to exhibit his reason to believe in

writing regarding the involvement of any suspect for

the commission of the above referred offences or

concealment of any contraband or commission of any

such offence in some place, building, etc. Thus, due

compliance of Sections 41 and 42 of NDPS Act are

mandatory.

Here, admittedly, whatever information was

received by PI-Shri PB Upadhyay from the informer in

respect of custody of contraband "charas" has not

exhibited, nor his reason to believe in writing regarding

the involvement of the respondents for the commission

of the offence alleged have been recorded. Further, it

appears from the deposition of this witness and others

that while searching the respondents, he was only

asked to search by the Police Officer, if he intend, but

he refused. None of the witnesses have stated in their

deposition that he was asked and informed that search

can be taken in presence of a gazetted officer; as

required under Section 50 of the NDPS Act. Further,

none of the prosecution witnesses have stated that

while conducting search of the accused, any question

was put to him. Even asking an accused person as to

whether he wanted to be searched before the Police

Officer would not be sufficient to comply with the

provisions of NDPS Act .

Moreover, there is nothing on record that the

Police Officers who reached at the residence of the

accused were duly authorized under sub-section [2] of

Section 41 of the NDPS Act. Absence of statutory

sanction authorizing such search etc., would render the

act of the officer illegal and would vitiated the

proceedings. Thus, the Police Officer who has received

information from the informer was required to record it

in writing in the concerned register and forthwith send

a copy thereof to his immediate superior before

proceeding to take action. The provisions of Section 42

of NDPS Act are mandatory in nature and hence, non

compliance of these mandatory provisions entitles the

respondent for acquittal. Therefore, any officer, as

defined in Section 41 of the Act, may between sunrise

and sunset - [a] enter into and search any such

suspected building, conveyance or place as aforesaid;

[b] in case of resistance, break open any doors and

remove any obstacle to such entry; [c] seize such drug

or substance and all materials used for the

manufacture of such drug or substance; [d] seize any

other article, any animal, or conveyance which he has

reason to believe to be liable to confiscation under the

Act; [e] seize any document or article which he has

reason to believe to furnish evidence of the commission

of any offence punishable under Chapter IV relating to

such drug or substance; and [f] detain and search and,

if proper, arrest any person which he has reason to

believe to have committed any offence, as aforesaid.

Thus, the powers under Section 42 of the Act can

be exercised by an authorized officer, if he has reason

to believe that, an offence punishable under Chapter IV

of the Act has been committed. Here, the Police Officer

has received information of contraband article from

some other source - not being personal knowledge.

Further, a rider is imposed that it must be reduced into

writing. These safeguards provided in Section 42 are

mandatory and the facts of the instant case reveal that

the search was conducted on the basis of information

received by the Police Officer and such information was

not reduced to writing. Even, the Police Inspector has

stated that he has not forwarded the same to his

superior officer. Therefore, there is a violation of

Section 42 of the NDPS Act. The prosecution also has

not at any point of time stated that the Police Inspector

Shri Upadhyay was an authorized Officer within the

meaning of Section 42 of the Act. It is not sufficient to

be an Inspector of Police or an officer of the

Government above a certain rank to have the power of

entry, search, seizure and arrest without warrant, but it

is necessary for such Police Officers that they must

have been authorized by the Government either by a

general order, or by a special order. Neither in the

statement of witnesses nor from the record of the case,

it has been shown that the witnesses who conducted

the search and arrested the accused person were

authorized by the State Government in terms of Section

42 of the NDPS Act. Even on this ground alone, for the

reasons aforestated, this Appeal deserves to be

dismissed. Moreover, the testimonies of prosecution

witnesses would clearly indicate that he had only

informed the accused that he could be searched before

any Magistrate or a Gazetted Officer, if he so wished.

The fact that the accused person has a right under

Section 50 of the NDPS Act to be searched before a

Gazetted Officer or a Magistrate was not made known

to him. We are of the view that there is an obligation on

the part of the empowered officer to inform the

accused or the suspect of the existence of such a right

to be searched before a Gazetted Officer or a

Magistrate, if so required by him. Only if the suspect

does not choose to exercise the right in spite of

apprising him of his right, the empowered officer could

conduct the search on the body of the person.

Further, it appears from the deposition of PW-5

Fakirbhai Punabhai [Exh. 50]; PW-6 Jagatsinh T Rana

[Exh. 51] and PW-7 Pravinchandra Balkrishna Upadhyay

[Exh. 52] that their testimonies are contrary to each

other, and therefore, it cannot be relied upon. PW-4 Dr.

Jagdishkumar, Asstt. Director, FSL is examined by the

prosecution at Exh. 47. He has prepared a Report at

Exh. 48 and admitted in his cross examination that

Mark "A", "B", "C" on the samples for analysis were

given from the Police Station. He has admitted that

Mark A1 to A22 were given in the Report at Exh. 48,

however, he has no idea who had given these marks

from his office. Therefore, it transpires that Mark "A" to

"F" given to the samples were marked from the Police

Station itself. Here, if we consider the panchnama Exh.

35, no marks appears to have been given to the

samples. Whatever samples were seized, they were

marked as "A", "B", "C", "D", "E", "F". Therefore, it can

be safely assumed that till the panchnama Exh. 35 was

prepared, no marks were given. Further, it transpires

from the panchnama Exh. 35 that on a seized articles

there was a seal applied by Police Inspector, DCB Police

Station, Vadodara City. As per the deposition of Dr.

Jagdishkumar, on the muddamal which was brought

before him, it was marked as "P.I., DCB Police Station,

Vadodara City" in English language. This creates a

doubt over the prosecution story, as when the

muddamal was seized by preparing the panchnama,

seal was affixed in Gujarati language and no marks

were given, but thereafter, marks were given to the

sample articles viz., "A" "B" "C" "D"..respectively in

English language. There is no explanation coming forth

from the prosecution as to at what stage, marks were

given and seal applied on muddamal articles was

changed. Further, no description of the vehicles in

which they had gone for raid was mentioned in the

panchnama Exh. 35, or even in the complaint Exh. 53.

More importantly, two panchas viz., Bipinbhai Babubhai

Darji and Mohmed Usman Mohd. Husen Munshi in their

testimonies at Exh. 34 & 46 respectively have not

supported the prosecution case, and thereby, declared

hostile.

In the backdrop of the aforesaid analysis, this

Court need not say anything further. Suffice will it be to

say that the prosecution has not been able to prove the

case against the accused persons beyond a shadow of

reasonable doubt. Therefore, the present Appeal

preferred by the State qua the respondent no. 2-

Rammilan Pathak is dismissed.

The respondent no.2-Rammilan Pathak is reported

to be on bail. His bail bond stands cancelled and

sureties discharged. He need not surrender again,

unless required in any other case.

Registry to transmit the record of this case to the

concerned Court. Amount deposited by the respondents

herein, pursuant to an Order dated 2nd August 1996

passed by this Court, needs to be refunded to them

alongwith interest accrued thereon by the concerned

learned Principal District Judge; on due verification.