Prosecution Must Prove It Was Liquor, Not Just a Bottle: Gujarat High Court Uphold Acquittal in NDPS Case

“In Absence of FSL Report and Compliance With NDPS Procedure, Acquittal Must Stand”— In a significant reaffirmation of procedural safeguards in criminal law, the Gujarat High Court, on 2nd June 2025, dismissed a State appeal under Section 378 of the CrPC in the case of State of Gujarat v. Topandas Nathalal & Another (R/Criminal Appeal No. 493 of 2008). The appeal challenged the acquittal of Topandas Nathalal under Sections 66(B), 65(A), 81, and 116(B) of the Bombay Prohibition Act, 1949 and Sections 27 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Justice Maulik J. Shelat confirmed that the prosecution had failed to follow mandatory procedures, holding that: “Seizure is only one part of the chain; the prosecution must prove what was seized, and that it was in contravention of law. Recovery without proof is no proof at all.”

The case arose from a raid conducted on 8th February 1994 when a police team, acting on a tip-off, intercepted Topandas Nathalal (Accused No.1) near Village Rabarika and found two bottles of alleged English liquor in his scooter. Upon questioning, he allegedly stated that the bottles came from Accused No.2 – Parshottam Devji, leading to a further search of his farm in Village Jubadi, where boxes of liquor and marijuana (ganja) were reportedly found.

The Trial Court (6th Fast Track Court, Gondal Camp at Jetpur) acquitted both accused in Special (NDPS) Case No. 95 of 1994 on 25th April 2007, citing failure of the prosecution to prove the core elements of the offences. The present appeal, filed by the State, was abated against Accused No.2 due to his death, and proceeded only against Accused No.1.

The High Court identified two key legal questions:

1. Whether the alleged English liquor seized from Accused No.1 was proven to be liquor as per law;

2. Whether the acquittal by the Trial Court was perverse or unsupported by evidence.

On both questions, the Court answered in favour of the Accused.

“Unless it is proved that what was seized was prohibited liquor, mere possession of bottles or liquid cannot attract the rigour of the Prohibition Act.” [Para 9(i)]

Failure to Establish the Nature of Seized Substance

The most critical flaw identified by the Court was the failure to send the seized liquid for Forensic Science Laboratory (FSL) testing. The Investigating Officer admitted that no sample was drawn, no muddamal was sent, and no test was conducted.

“The Investigating Officer himself admitted that no sample of the alleged liquor was taken from the sealed bottle and no testing was done by FSL. In absence of such basic evidence, the prosecution case collapses.” [Paras 9(ii), 9(iv)]

The Trial Court’s conclusion that the substance was never legally proved to be alcohol was upheld as correct.

“Had the FSL confirmed the presence of prohibited liquor, a conviction could have been possible. But in its absence, the offence remains unproved.” [Para 9(v)]

On the NDPS Charges: Non-Compliance With Statutory Mandates

Although the NDPS charges related to Accused No.2 (now deceased), the Court discussed the procedural lapses under the NDPS Act, observing: “The mandatory provisions under Sections 42 and 57 of the NDPS Act were not complied with. The ownership of the farm where marijuana was allegedly found was never ascertained. These omissions go to the root of the prosecution’s case.” [Para 9(vi)]

The Court reaffirmed the principles laid down by the Supreme Court in Chandrappa v. State of Karnataka, (2007) 4 SCC 415, and most recently in Babu Sahebagouda Rudragoudar v. State of Karnataka, (2024) 8 SCC 149: “There is a double presumption of innocence in cases where the trial ends in acquittal. The appellate court must not interfere unless the trial court’s findings are manifestly illegal or perverse.” [Paras 6–7]

Justice Shelat further clarified: “When two plausible views are possible, the appellate court must lean toward the one favouring the accused. The Trial Court’s reasoning was neither perverse nor arbitrary.” [Para 10]

The Gujarat High Court dismissed the appeal, holding that: “The prosecution’s failure to follow essential and mandatory procedures—including forensic confirmation of the seized substance—rendered the charges unsustainable. The Trial Court’s decision is supported by the record and law.” [Para 11]

The ruling reiterates that convictions under Prohibition and NDPS laws require strict adherence to statutory mandates, especially where the consequences are severe.

Date of Decision: 2nd June 2025