Rajasthan High Court – Jodhpur
State Of Rajasthan vs Mangi Bai (2025:Rj-Jd:26716) on 27 May, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:26716]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal (Sb) No. 1023/2025
State Of Rajasthan, Through Pp
----Appellant
Versus
Mangi Bai W/o Narayan Lal, R/o Sukhadiya Nagar, Nathdwara,
Police Station Nathdwara, Dist. Rajsamand.
----Respondent
For Appellant(s) : Mr. Surendra Bishnoi, AGA
For Respondent(s) : -
HON'BLE MR. JUSTICE FARJAND ALI
Order
27/05/2025
1. The instant appeal is directed against the judgment dated
19.09.2023, passed by the learned Special Judge NDPS Act Case
(Addl. Sessions Judge) Rajsamand, in NDPS Case No.24/2022
whereby the accused-respondent was acquitted of the charges
under Section 8 read with Section 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (NDPS Act).
2. The brief facts of the case are that on 03.05.2012, the
respondent, Smt. Mangibai was apprehended by Sub-Inspector
Sumit Kumar while she was allegedly carrying a sack. Upon
search, the sack was found to contain poppy husk and opium. On
the basis of this recovery, she was charged under the relevant
provisions of the NDPS Act.
3. I have heard the learned counsel for the State and carefully
examined the record of the case. A significant legal defect in the
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prosecution’s case was fairly conceded by the learned counsel for
the State, particularly with regard to non-compliance of the
mandatory provisions under Section 42 of the NDPS Act. In light
of the same, it becomes necessary to re-examine this aspect
thoroughly.
4 It is now well-settled law, as consistently held by the Hon’ble
Supreme Court, that non-compliance with the mandatory
provisions of Section 42 of the NDPS Act–pertaining to the
recording and communication of information received by the
empowered officer–vitiates the entire recovery. Additionally,
seizure made by an officer not legally authorised under the Act is
also liable to be quashed on that ground alone.
4.1. Upon a meticulous perusal of the record, it is evident that
PW-14 Sumit Kumar, who conducted the search and seizure, was a
Sub-Inspector of Police Station Nathdwara.. at the relevant point
of time. However, there is not a single piece of evidence–
documentary or otherwise–on record to establish that PW-14
Sumit Kumar was posted as the Station House Officer (SHO) of
Police Station Nathdwara or was holding charge of the same
during the relevant period.
4.2. It is settled administrative procedure that posting orders of
SHOs are issued by the Superintendent of Police concerned–in
this case, the Superintendent of Police, Rajsamand. No such order
posting PW-14 Sumeet Kumar as SHO of Police Station Nathdwara
has been placed on record. Rather, PW-12 Anil Meena, deposed
that he was posted as SHO, Police Station Nathdwara, from
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December 2008 until July 2012. In his deposition, PW-12 Anil
Meena categorically stated that during this period, he was neither
transferred nor deputed to any other police station. This
completely contradicts the claim of PW-14 Sumit Kumar, who
asserted that he was holding the charge of Police Station
Nathdwara at the relevant time. The said claim, therefore, stands
uncorroborated and is contradicted by a prosecution witness,
which further weakens the prosecution’s case.
4.3. Moreover, the recovery from the respondent was allegedly
made from a sack she was carrying in her hand. Despite this, no
notice under Section 50 of the NDPS Act was served upon her. It is
a well-established position in law that notice under Section 50 is
mandatorily required when the search is of a person or of an item
intimately connected to the person, such as a bag or sack carried
on the body. The omission to issue such a notice constitutes a
serious legal infirmity, and the resultant recovery stands vitiated.
4.4. Additionally, both independent witnesses examined during
the trial failed to corroborate the alleged recovery. Their lack of
support further casts serious doubt on the credibility of the
prosecution’s version.
4.5. It is nigh well settled that there is a presumption of
innocence in favour of an accused and the same gets further
fortification after his acquittal by a reasoned judgment of a Court
of competent jurisdiction. The Court of appeal should be slow and
should show reluctance in making interference in a well reasoned
judgment of acquittal. It should be kept in mind that until and
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unless it is observed that the judgment of acquittal is a product of
total non-consideration of the material brought on record or it is
against any provision of law or is concluded upon misappreciation
of evidence; the appellate Court should not interfere in the finding
reached by the trial Court. If after re-appreciation of evidence, a
stage comes where two views seem possible still the Court should
tend to accept the view favourable to the accused. Recently
Hon’ble the Supreme Court in its pronouncement in the matter of
Mallappa & Ors.Versus State of Karnataka (Criminal Appeal
NO. 1162/2011 decided on 12.02.2024) had an occasion to
expound common principles in respect of the issue involved in like
cases while entertaining an appeal against acquittal; the relevant
Para No.36 is reproduced as under :-
36. Our criminal jurisprudence is essentially based on the promise
that no innocent shall be condemned as guilty. All the safeguards
and the jurisprudential values of criminal law, are intended to
prevent any failure of justice. The principles which come into play
while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial
and such appreciation must be comprehensive – inclusive of all
evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a
miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two
views are possible, the one in favour of the accused shall ordinarily
be followed;
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(iv) If the view of the Trial Court is a legally plausible view, mere
possibility of a contrary view shall not justify the reversal of
acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in
appeal on a re-appreciation of evidence, it must specifically
address all the reasons given by the Trial Court for acquittal and
must cover all the facts;
vi) In a case of reversal from acquittal to conviction, the appellate
Court must demonstrate an illegality, perversity or error of law or
fact in the decision of the Trial Court.
In light of the above circumstances, the learned Trial Court
was justified in returning a finding of acquittal. The judgment is
well-reasoned, based on a thorough appraisal of evidence, and
supported by settled legal principles. There is no illegality,
perversity, or misappreciation of facts that would warrant
interference by this Court in an appeal against acquittal.
5. Accordingly, the appeal lacks merit and is hereby dismissed.
The impugned judgment of acquittal stands affirmed. The record
of the case be sent back to the Trial Court forthwith.
(FARJAND ALI),J
26-Mamta/-
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